CO  NCR  J.MS.   J«Y4. 

•»  of^Xnurifa, 


VOTING  IN  THE  FIELD 


3       «? 


VOTING  IN  THE  FIELD 

A  FORGOTTEN  CHAPTER 
OF     THE     CIVIL    WAR 


BY 

JOSIAH    HENRY    BENTON,    LL.D. 

Author  of  "Early  Census  Making  in  Massachusetts,"  "Story  of  the  Old 

Botion  Town  House,"  "The  Book  of  Common  Prayer:  itt  Origin 

and  Growth,"  "Samuel  Slade  Benton:  His  Ancestor*  and 

Descendants,"  "John  Baskervitte,  Typefounder 

and  Printer,"  etc. 


BOSTON 

PRIVATELY    PRINTED 
1915 


COPYRIGHT,     IQIS 
BY    JOSIAH     H.     BENTON 


THE  -PLIMPTON  -PRESS 
NORWnOD-MASS-L-S-A 


CONTENTS 

CHAPTER  PAGE 

I.  INTRODUCTION 3 

II.  METHOD  OF  VOTING 15 

III.  SMALL  UNION  MAJORITY 19 

IV.  VOTING  ACTS  IN  THE  SOUTH 27 

V.  MISSOURI        41 

VI.  IOWA 47 

VII.  WISCONSIN 53 

VIII.  MINNESOTA 67 

IX.  OHIO 73 

X.  VERMONT 80 

XI.  WEST  VIRGINIA 90 

XII.  MICHIGAN 92 

XIII.  KENTUCKY 105 

XIV.  KANSAS 108 

XV.  MAINE 118 

XVI.  CALIFORNIA 128 

XVII.  NEW  YORK 132 

XVIII.  NEVADA 171 

XIX.  CONNECTICUT 174 

XX.  RHODE  ISLAND 182 

XXI.  PENNSYLVANIA 189 

XXII.  NEW  HAMPSHIRE 204 

XXIII.  MARYLAND 223 

XXIV.  ILLINOIS 250 

XXV.  DELAWARE  266 


vi  CONTENTS 

XXVI.  NEW  JERSEY 269 

XXVII.  INDIANA 281 

XXVIII.  MASSACHUSETTS 293 

XXIX.  OREGON 305 

XXX.  REVIEW  AND  SUMMARY 306 

INDEX  .  323 


ILLUSTRATIONS 

Map Frontispiece 

Abraham  Lincoln Facing  Page  20 

Brig.  Gen.  Frank  P.  Blair 42 

Gen.  Nathaniel  Lyon 46 

John  Brough 74 

Luke  P.  Poland 82 

Austin  Blair 94 

Horatio  Seymour 134 

Andrew  G.  Cm-tin 190 

William  E.  Chandler 206 

Gen.  John  A.  Dix 224 

Richard  Yates    .           252 

Oliver  P.  Morton 282 

Ulysses  S.  Grant 320 


VOTING  IN  THE  FIELD 


VOTING  IN  THE  FIELD 


CHAPTER  I 

INTRODUCTION 

THIS  book  is  an  attempt  to  portray  an  important 
phase  of  the  Civil  War,  which  has  passed  with- 
out consideration,  and  with  little  notice,  by  the  histo- 
rians of  that  period.  Its  preparation  has  required  an 
examination  of  the  Constitutions  and  legislation  of  all 
the  States,  south  as  well  as  north,  and  of  their  stat- 
utes allowing  soldiers  to  vote  in  the  field;  and  also  of 
the  legislative  proceedings  which  resulted  in  such  leg- 
islation, or  in  which  such  legislation  was  attempted  but 
failed.  By  legislation  is  meant  changes  in  constitu- 
tional limitations,  as  well  as  laws  enacted  within  the 
constitutional  limitations. 

I  have  tried  to  show  not  only  what  the  people  did, 
but  how  they  did  it,  who  supported,  and  who  opposed 
this  legislation;  or  when  legislation  was  defeated  who 
was  responsible  for  the  defeat,  and  the  grounds  upon 
which  the  legislation  was  supported,  and  the  grounds 
upon  which  it  was  opposed.  To  do  this  has  required 
me  not  only  to  make  full  abstracts  of  the  legislation 
in  the  different  States,  using  in  many  cases  the  exact 
language  of  the  statutes,  but  also  to  give  the  language 
of  the  Governors  in  recommending  or  vetoing  such 
legislation,  and  the  language  of  the  reports  of  the 
legislative  committees  in  favor  of  and  against  it,  and, 
so  far  as  is  now  possible,  the  language  of  the  legis- 


4  VOTING  IN  THE  FIELD 

lative  debates.  I  believe  that  the  language  of  the 
actors  best  preserves  the  "form  and  pressure  of  the 
time,"  and  therefore  at  the  risk  of  repetition,  and 
even  of  prolixity,  I  have  endeavored  to  give  that 
language.  And  as  laws  are  only  the  expression  of  the 
desires  of  the  people,  I  have  deemed  it  proper  in 
many  cases  to  show  the  situation  of  the  States  and 
the  mood  and  temper  of  the  people  whose  legislatures 
adopted  or  refused  to  adopt  legislation  for  soldiers'  vot- 
ing in  the  field.  My  story  therefore  embraces  the  his- 
tory of  legislation  or  an  attempt  to  legislate  in  every 
Southern  State  except  four, —  Mississippi,  Arkansas, 
Louisiana  and  Texas;  and  in  every  Northern  State  ex- 
cept Oregon.  It  is  important,  I  think,  not  only  for 
what  it  accomplished,  but  because  it  showed  the  de- 
sire of  the  people  that  the  man  who  fought  for  the 
Confederacy,  or  for  the  Union,  should  not  thereby  be 
disfranchised. 

Voting  in  the  field  was  provided  for,  or  attempted 
to  be  provided  for,  between  May  8, 1861  and  October  13, 
1864,  in  North  Carolina,  Tennessee,  Virginia,  Alabama 
Georgia,  South  Carolina,  Florida,  Missouri,  Iowa,  Wis- 
consin, Minnesota,  Ohio,  Vermont,  West  Virginia, 
Kentucky,  Michigan,  Massachusetts,  Nevada,  Con- 
necticut, Pennsylvania,  New  Hampshire,  Maryland, 
Indiana,  Delaware  and  New  Jersey,  and  was  also 
provided  for  in  1865  by  legislation  in  Illinois. 

It  is  my  purpose  to  state  what  this  legislation  was, 
and  as  far  as  is  now  possible  what  was  done  under  it. 

To  understand  this  subject  clearly,  it  is  necessary 
to  understand  what  the  right  to  vote  was  at  the  time 
of  the  Civil  War.  It  was  a  right  wholly  secured  and 
regulated  by  the  Constitutions  and  laws  of  the  States. 
A  man  had  not  then,  and  has  not  now,  any  right  to 
vote  except  by  the  Constitution  and  the  law  of  the 


INTRODUCTION  5 

State  where  he  lives.  Nor  could  he  then  exercise  that 
right  except  at  meetings  within  defined  election 
districts,  such  as  towns,  wards,  counties  or  parishes 
within  the  State.  When  the  war  broke  out  there  was 
no  legislation  under  which  a  soldier  or  sailor,  having 
the  right  to  vote  in  an  election  district  of  any  State 
could  vote  anywhere  outside  of  his  district. 

Now,  the  war  was  fought  by  soldiers  on  both  sides 
who  were  substantially  all  voters,  and  when  they 
left  their  States  they  lost  their  votes.  This  seemed 
to  be  quite  unfair.  There  seemed  to  be  no  reason 
why  the  man  who  was  qualified  to  vote  at  home 
should  be  disqualified  merely  because  he  was  out  of  the 
State  fighting  the  battles  of  the  Union  or  of  the 
Confederacy.  It  was  unjust  that  a  man  who  was  en- 
gaged in  supporting  the  government  of  the  Union 
or  the  Confederacy  by  arms  should  thereby  be 
deprived  of  his  right  to  participate  in  that  govern- 
ment. The  right  to  vote  is  the  only  essential  right  of 
citizenship.  It  is  the  right  preservative  of  all  rights. 

It  seems  a  very  simple  thing  for  the  Legislature 
to  provide  that  a  man  entitled  to  vote  in  the 
State  may  vote  outside  of  it.  But  when  the  Legis- 
latures sought  to  frame  laws  for  this  purpose  which 
could  be  applied  practically,  justly  and  fairly,  it 
was  found  to  be  much  more  difficult  than  had  been 
anticipated.  And  besides  in  many  States  the  Con- 
stitutions which  secured  the  right  to  vote  fixed  the 
place  for  the  exercise  of  that  right  so  that  an  amend- 
ment was  required  to  enable  the  Legislature  to  legis- 
late at  all  upon  the  subject. 

The  language  of  the  constitutional  provisions 
securing  the  right  of  suffrage  differed  in  the  different 
States,  but  we  are  only  concerned  here  with  the 
question  of  what  the  language  was  with  regard  to  the 


6  VOTING  IN  THE  FIELD 

place  where  the  elector  was  to  vote.  In  all  of  the  Con- 
stitutions a  longer  or  shorter  period  of  residence  in 
a  district  in  which  the  elector  offered  to  vote  was 
required,  and  in  some  of  them  it  was  provided  that 
he  should  not  vote  out  of  the  district,  or  that  he 
should  vote  only  in  the  district;  and  in  others  there 
was  no  such  provision. 

In  Alabama  the  language  was,  "shall  reside  in  the 
district  in  which  he  offers  to  vote." 

In  Arkansas  it  was,  "be  entitled  to  vote  in  the 
county  or  district  where  he  actually  resides." 

In  California,  it  was,  "shall  be  entitled  to  vote  at 
all  elections  authorized  by  law." 

In  Connecticut  the  language  was,  "at  a  meeting 
of  the  electors  they  shall  be  called  to  bring  in  their 
ballots." 

In  Delaware  it  was,  "shall  enjoy  the  right  of  an 
elector." 

In  Florida  it  was,  "within  the  election  district  in 
which  he  offers  to  vote." 

In  Georgia  the  provision  was  general,  within  the 
county  where  the  elector  resided,  provided  that  in 
case  people  were  driven  out  of  their  county,  a  major- 
ity of  them  might  meet  and  hold  an  election  out  of 
the  county. 

In  Illinois  the  provision  was,  no  elector  "shall  be 
entitled  to  vote  except  in  the  district  or  county  in 
which  he  shall  actually  reside  at  the  time  of  such 
election." 

In  Indiana  it  was,  "shall  be  entitled  to  vote  in  the 
township  or  precinct  where  he  may  reside." 

In  Iowa  it  was,  "shall  be  entitled  to  vote  at  all 
elections  authorized  by  law." 

In  Kansas  it  was,  have  resided  "in  the  township 
or  ward  in  which  he  offers  to  vote." 


INTRODUCTION  7 

In  Kentucky  it  was,  "he  shall  vote  in  the  precinct 
where  he  resides  and  not  elsewhere." 

In  Louisiana  it  was,  "shall  have  the  right  to  vote 
in  the  parish  where  he  resides." 

In  Maine  it  was,  shall  be  an  elector  "in  the  town 
or  plantation  where  his  residence  is  so  established." 

In  Maryland  it  was,  "shall  be  entitled  to  vote  in 
the  ward  or  election  district  where  he  resides." 

In  Massachusetts  it  was,  "to  vote  in  a  meeting 
of  the  electors  called,"  and  such  meetings  were  to  be 
within  the  limits  of  the  town. 

In  Michigan  it  was,  "shall  reside  in  the  township 
or  ward  in  which  he  offers  to  vote." 

In  Minnesota,  it  was,  "shall  be  entitled  to  vote  at 
such  election  in  the  election  district." 

In  Mississippi  it  was,  "shall  reside  within  the 
county,  city  or  town  in  which  he  offers  to  vote." 

In  Missouri  it  was,  "shall  be  a  qualified  elector 
in  the  district  in  which  he  offers  to  vote." 

Nevada  was  admitted  a  State  during  the  Civil 
War  and  had  a  provision  in  its  Constitution  for 
voting  in  the  field. 

In  New  Jersey  it  was  "shall  have  been  a  resident 
of  the  county  in  which  he  claims  his  vote  for  five 
months  shall  be  entitled  to  vote  for  all  officers." 

In  New  Hampshire  the  voting  was  required  to  be 
at  meetings  in  the  various  towns. 

In  New  York  the  language  was,  "shall  be  entitled 
to  vote  in  the  election  district  of  which  he  shall  at 
the  time  be  a  resident  and  not  elsewhere." 

In  North  Carolina  the  language  was,  shall  be 
entitled  to  vote  in  the  election  district  in  which  he  re- 
sides. 

In  Ohio  the  language  was,  "shall  be  entitled  to 
vote  at  all  elections." 


8  VOTING  IN  THE  FIELD 

In  Oregon  it  was,  "shall  be  entitled  to  vote  at  all 
elections  authorized  by  law." 

In  Pennsylvania,  the  language  was,  "shall  enjoy 
the  rights  of  an  elector  in  the  district  where  he  offers 
to  vote." 

In  Rhode  Island  it  was,  "shall  have  the  right  in 
all  legal  town  or  ward  meetings." 

In  South  Carolina  it  was  "shall  have  the  right  to 
vote  in  the  election." 

In  Tennessee  it  was,  "shall  be  entitled  to  vote  in 
elections  in  the  county  or  district  where  he  resides." 

In  Texas  it  was,  "to  vote  within  the  district, 
county,  city  or  town." 

In  Vermont  the  right  was  to  vote  "in  Freemen's 
meetings." 

In  Virginia  the  language  was  "shall  reside  in  the 
county,  city  or  town  where  he  offers  to  vote." 

In  West  Virginia  the  right  to  vote  in  all  elections 
was  given  to  all  persons  in  the  counties  in  which 
they  resided. 

In  Wisconsin  the  language  was,  "shall  be  admitted 
a  qualified  elector  at  such  election." 

In  Connecticut,  Kentucky,  Louisiana,  Maine, 
Maryland,  Massachusetts,  New  Hampshire,  New 
York,  Pennsylvania,  Rhode  Island,  and  Vermont,  the 
Constitutions  fixed  the  place  where  the  voter  was  to 
vote,  so  that  the  Legislature  could  not  authorize  him 
to  vote  out  of  the  State.  In  several  of  the  other 
States,  notably  Illinois,  Michigan  and  Kansas,  the 
language  of  the  Constitution  perhaps  bears  that 
construction,  although  it  was  not  so  construed  by 
the  Legislature  which  passed  acts  providing  for 
soldiers  voting  in  the  field.  But  to  make  it  entirely 
clear  Kansas  and  Michigan  amended  their  Constitu- 
tions after  they  had  passed  their  voting  acts. 


INTRODUCTION  9 

The  Constitution  of  no  State,  however,  made  any 
provision  relative  to  where  a  man  should  be  allowed  to 
vote  for  members  of  Congress,  or  for  presidential 
electors,  and  it  is  clear  that  the  place  where  such 
votes  shall  be  cast  is  within  the  discretion  of  the 
Legislature  of  each  State  until  controlled  by  Congress. 

It  was  therefore  possible  for  every  State  to  pass  a 
law  permitting  soldiers  to  vote  in  the  field  for  presi- 
dential electors  and  members  of  Congress.  This  was 
held  by  the  Supreme  Court  of  Vermont  on  April  1, 
1864,  when  it  declared  an  act  of  the  Legislature 
authorizing  soldiers  to  vote  in  the  field  to  be  uncon- 
stitutional as  to  State  officers,  but  constitutional  as 
to  presidential  electors  and  members  of  Congress. 
This  decision  has  not  been  questioned  anywhere.  It 
was  followed  by  the  Supreme  Court  of  New  Hamp- 
shire in  1864;  was  followed  by  the  Legislature  of 
Maine  in  1864;  and  also  followed  by  the  Legisla- 
ture of  Kentucky  in  1864,  which  authorized  voting 
in  the  field  for  presidential  electors,  but  not  for 
members  of  Congress.  This  distinction  does  not  ap- 
pear to  have  been  considered  in  Connecticut,  Rhode 
Island,  Michigan,  Wisconsin,  New  York,  Pennsylvania 
or  Maryland  or  even  in  New  Hampshire  at  first. 

The  opinion  in  Vermont  was  drawn  by  Chief 
Justice  Poland,  and  is  signed  by  all  the  Judges  of  the 
Court.  As  to  the  power  of  the  Legislature  to  author- 
ize votes  for  State  officers  to  be  cast  by  soldiers  out 
of  the  State,  it  says: 

"Looking  to  the  language  of  our  Constitution,  the 
state  of  things  existing  at  the  time  of  its  formation,  the 
early  legislation  under  it,  the  uniform  legislation  and 
usage  of  the  State  since,  and  the  various  discussions  and 
decisions  in  other  States,  we  are  clearly  satisfied  that 
by  the  fair  construction  of  our  Constitution  the  right  of 


10  VOTING  IN  THE  FIELD 

voting  for  Governor  and  other  State  officers  can  only  be 

exercised   within   the   State   in  the    'Freemen's   Meeting' 

to   be   held   within   the   towns  on    the   first   Tuesday    of 
September  in  each  year." 

As  to  permitting  votes  to  be  cast  out  of  the 
State  for  members  of  Congress  and  presidential 
electors,  the  opinion  says:  the  Constitution  is  entirely 
silent  upon  the  subject,  and  there  is  no  presumption 
about  it.  The  matter  is  controlled  by  the  Federal 
Constitution  and  Acts  of  Congress,  and  all  the  Con- 
stitution says  is  that:  "The  times,  places  and  manner 
of  holding  elections  for  representatives  shall  be 
prescribed  in  each  State  by  the  Legislature  thereof" 
As  to  the  choice  of  electors  the  Constitution  provides 
that  "each  State  shall  appoint  in  such  manner  as  the 
Legislature  may  direct"  the  number  of  electors,  and 
Congress  may  determine  the  time  of  choosing  the 
electors.  "Under  this  provision  the  choice  of  electors 
has  been  variously  provided  for  by  the  State  legisla- 
tures. In  some  the  Legislatures  have  directly  chosen 
the  electors  themselves.  This  was  the  mode  in 
Vermont  down  to  1824.  In  other  States  they  have 
been  chosen  by  general  ticket  throughout  the  whole 
State;  in  others  the  Legislatures  have  divided  the 
State  into  districts  for  the  choice  of  electors.  The 
only  power  Congress  has  over  this  matter  is  to  fix 
the  time  of  election."  And  finally  the  Court  said: 

"There  would  seem  to  be  no  ground  to  question  the 
power  of  the  Legislature  to  authorize  voting  for  electors 
as  they  have  done  by  this  bill.  Voting  for  representatives 
to  Congress  and  for  electors  has  never  been  understood  by 
our  Legislature  as  affected  by  the  provisions  of  our  Consti- 
tution. It  has  frequently  happened  that  congressional  elec- 
tions and  presidential  elections  have  occurred  while  our 
Legislature  has  been  in  session,  and  it  has  been  common 


INTRODUCTION  11 

for  the  Legislature  to  provide  by  special  act  to  allow  mem- 
bers of  the  Legislature,  and  others  in  attendance  on  the 
Legislature  to  vote  at  Montpelier,  though  not  within  their 
congressional  district,  and  also  to  vote  for  electors.  (Acts 
of  1850,  No.  73.)  The  propriety  of  such  action  we  have 
never  heard  questioned." 

Then  the  Court  added  that  they  did  "not  find 
that  the  question  of  the  validity  of  such  laws,  as 
applied  to  voting  for  electors  and  representatives  in 
Congress  had  been  discussed  at  all  in  other  States; 
"whether  because  it  has  been  regarded  as  we  regard 
it,  free  of  doubt  under  the  Constitution  of  the  United 
States,  or  because  there  has  yet  been  no  occasion  for 
such  discussion,  we  do  not  know."  * 

The  matter  of  permitting  soldiers  to  vote  outside 
the  State  in  which  they  were  voters  under  the  laws 
of  the  different  States  thus  included  the  matter  of 
voting  for  purely  State  officers,  such  as  governor, 
representatives  and  senators,  State  judges,  etc.,  and 
the  matter  of  voting  for  presidential  electors  and  repre- 
sentatives in  Congress. 

In  States  whose  Constitutions  did  not  prescribe 
the  place  and  manner  of  voting  so  clearly  as  to  make 
it  appear  that  it  was  intended  that  votes  should  be 
cast  by  the  person  in  the  voting  district  where  he 
resided,  of  course,  the  Legislature  could  provide  by 
law  for  the  voters  voting  out  of  the  State  under  such 
regulations  as  it  saw  fit  to  impose  not  only  for  State 
officers,  but  also  for  presidential  electors  and  repre- 
sentatives in  Congress. 

But  in  States  where  the  place  of  voting  was 
fixed  by  the  Constitution,  an  amendment  to  the 
Constitution  was  necessary  before  a  law  could  be 

1  37  Vermont,  pp.  665,  666. 


12  VOTING  IN  THE   FIELD 

passed  authorizing  soldiers  to  vote  in  the  field  for 
State  officers.  In  such  cases,  however,  no  amendment 
was  necessary  to  enable  the  Legislature  to  prescribe 
for  voting  in  the  field  for  presidential  electors  and 
representatives. 

This  distinction,  although  it  is  now  very  clear, 
does  not  appear  to  have  been  generally  recognized 
at  the  time  of  the  Civil  War.  At  that  time  the 
only  decision  by  the  courts  on  the  matter  of  voting 
in  the  field  was  in  Pennsylvania,  and  arose  in  the 
case  of  the  election  of  a  State  officer;  —  a  prosecuting 
attorney.  The  voting  in  the  field  elected  a  man 
prosecuting  attorney.  His  contestant  alleged  that 
voting  in  the  field  was  illegal,  because  the  place  and 
manner  of  voting  was  fixed  by  the  Constitution,  and 
the  Court  so  held.  The  opinion  was  by  Woodward, 
a  Democratic  Judge  of  violent  anti-war  proclivities, 
in  May,  1862.  His  opinion  was  general,  and  did  not 
take  the  distinction  between  voting  for  State  officers 
and  for  presidential  electors  and  members  of  Congress. 

In  1863,  the  Legislature  of  New  Hampshire  passed 
an  act  providing  for  soldiers  voting  in  the  field  for 
State  officers,  and  for  presidential  electors  and  mem- 
bers of  Congress,  and  the  Supreme  Court  advised  the 
Legislature  that  it  was  unconstitutional.  In  the  same 
year  the  Legislature  of  Connecticut  passed  a  bill  appli- 
cable to  the  election  of  State  officers  and  of  presi- 
dential electors  and  representatives  in  Congress,  and 
the  Supreme  Court  advised  that  it  was  unconstitu- 
tional. 

But  in  1864,  the  Legislature  of  New  Hampshire 
passed  an  act  for  voting  in  the  field  for  presidential 
electors  and  representatives  in  Congress,  and  the 
Supreme  Court  advised  that  it  was  constitutional. 

Connecticut,  Kansas,  New  York,  Maine,  Maryland, 


INTRODUCTION  13 

Michigan,  Pennsylvania,  and  Rhode  Island  amended 
their  Constitutions  so  as  to  authorize  voting  in  the 
field  for  State  officers  as  well  as  for  presidential  electors 
and  representatives  in  Congress.  No  attempt  was 
made  in  any  of  these  States  except  Maine  to  pass 
an  act  for  voting  in  the  field  for  presidential  electors 
and  representatives  in  Congress. 

In  California,  Illinois,  Iowa,  Minnesota,  Ohio,  and 
Wisconsin,  the  place  and  manner  of  voting  were  not 
so  clearly  and  fully  prescribed  by  the  Constitutions  as 
to  leave  no  power  in  the  Legislatures  to  regulate  the 
manner  of  voting.  In  all  these  States,  laws  were 
passed  authorizing  soldiers  to  vote  in  the  field  for 
State  officers  as  well  as  for  presidential  electors  and 
representatives  in  Congress. 

The  California  act  was  afterwards  held  unconstitu- 
tional by  its  Supreme  Court.  Massachusetts  at- 
tempted to  amend  its  Constitution  so  as  to  permit 
its  Legislature  to  pass  an  act  to  allow  its  soldiers  to 
vote  in  the  field,  but  failed  to  do  so. 

In  Missouri  a  convention  was  called  by  the  Legisla- 
ture by  an  act  passed  January  21,  1861,  "to  take  such 
action  as  the  interest  and  welfare  of  the  State  shall 
require;"  and  was  authorized  "to  adopt  such  measures 
for  vindicating  the  sovereignty  of  the  State  and  the 
protection  of  its  institutions  as  should  appear  to  them 
to  be  demanded."  The  only  check  upon  the  author- 
ity of  the  convention  seems  to  have  been  that  Section 
10  of  the  act  calling  it  provided  that:  "No  act, 
ordinance,  or  resolution  of  said  Convention  shall  be 
deemed  to  be  valid  to  change  or  dissolve  the  political 
relations  of  this  State  to  the  Government  of  the 
United  States,  or  any  other  State,  until  a  majority 
of  the  qualified  voters  of  this  State,  voting  upon  the 
question  shall  ratify  the  same."  This  provision  appar- 


14  VOTING  IN  THE   FIELD 

ently  authorized  the  Convention  to  do  anything  it 
pleased  except  to  take  Missouri  out  of  the  Union,  and 
under  it  the  Convention  authorized  voting  by  soldiers 
in  the  field. 

In  Indiana,  Delaware  and  New  Jersey  bills  to 
permit  soldiers  to  vote  in  the  field  were  introduced 
in  the  Legislature,  but  failed  of  passage. 

In  Oregon  no  attempt  was  made  to  pass  a  bill. 


CHAPTER  II 

METHOD  OF  VOTING 

TWO  methods  for  soldiers  voting  in  the  field  were 
employed ;  one,  which  took  the  ballot  box  to  the 
soldier  in  the  field  and  permitted  him  to  cast  his 
ballot  into  it,  in  which  case  his  connection  with  his 
vote  ended  when  he  put  it  in  the  box,  precisely  as  it 
would  have  ended  if  he  had  put  it  into  the  box  in  his 
voting  precinct,  at  home.  This  method  was  true 
voting  in  the  field.  The  soldier's  vote  was  cast  in 
the  field  with  precisely  the  same  effect  as  if  cast  at 
home.  The  other  method  was  what  is  known  as 
"proxy  voting."  The  ballot  box  was  not  taken  to  the 
soldier,  but  he  was  authorized  to  prepare  his  ballot 
in  the  field  and  send  it  to  some  one,  as  his  proxy, 
to  cast  into  the  ballot  box  in  his  voting  precinct  at 
home.  Under  this  method  it  was  claimed  that  the 
voter's  connection  with  his  ballot  did  not  end  until 
it  was  cast  into  the  box  at  the  home  precinct,  and 
therefore  that  the  soldier  really  did  vote,  not  in  the 
field,  but  in  his  precinct  at  home. 

As  to  the  first  method  which  took  the  ballot  box 
to  the  soldier  in  the  field,  the  first  question  which 
arose  was  whether  the  act  of  voting  was  one  which 
the  State  could  authorize  to  be  performed  outside  of 
its  own  territory.  It  was  claimed  that  the  action  of 
the  people  of  a  State  was  necessarily  restricted  to  the 
territory  of  the  State;  that  they  had  no  right  to 
permit  a  portion  of  their  people  to  perform  the  act  of 


16  VOTING  IN  THE  FIELD 

voting  elsewhere,  and  thus  govern  the  State  in  China, 
or  Peru,  or  anywhere  except  in  the  State.  This  was 
the  view  taken  by  Judge  Ranney,  a  very  able  Judge,  in 
his  dissenting  opinion  in  Lehman  against  McBride  in 
Ohio,  and  also  by  Judge  Woodward  in  the  opinion  of 
the  Court  in  Chase  v.  Miller,  in  Pennsylvania.  This 
objection  would  prevent  voting  in  the  field,  even  if  the 
State  Constitution  permitted  it.  It  is,  however,  a  re- 
striction upon  the  power  of  the  people  which  is  theo- 
retical rather  than  practical,  and  has  not  been  accepted 
as  sound.  The  second  question  was  whether  the  State 
Constitution  had  so  fixed  the  place,  time,  or  manner 
of  voting  that  the  Legislature  could  not  authorize 
voting  at  any  other  place  or  at  any  other  time,  or  in 
any  other  manner  than  that  fixed  by  the  Constitution. 
If  in  any  State  this  was  found  to  be  the  case,  the  Con- 
stitution must  be  amended,  if  the  Legislature  was  to 
authorize  voting  in  the  field.  In  some  States  the  Con- 
stitution had  plainly  prescribed  the  place  or  the  time 
or  the  manner  of  voting,  and  in  such  States  the 
soldiers  could  be  allowed  to  vote  in  the  field  only  by 
amending  the  Constitution.  This  was  the  case  in 
all  the  New  England  States,  in  most  of  the  Southern 
States,  and  in  New  York,  New  Jersey,  and  some 
other  States. 

In  other  States,  where  the  Constitution  plainly 
did  not  prescribe  the  place,  time  or  manner  of  voting, 
the  Legislature  was  free  to  allow  voting  in  the  field 
under  such  restrictions  as  it  saw  fit  to  impose.  This 
was  the  case  in  Minnesota,  IowTa,  Wisconsin,  and 
some  other  States.  In  still  other  States  the  question 
as  to  whether  the  Constitution  left  the  Legislature 
free  to  provide  the  place,  time  and  manner  of  voting 
was  doubtful,  and  fairly  debatable.  In  such  States 
there  was  nothing  to  do  but  amend  the  Constitution, 


METHOD   OF  VOTING  17 

which  took  time  and  might  not  be  necessary,  or  to 
pass  a  soldiers'  voting  bill  and  leave  the  question  of 
its  constitutionality  to  the  Courts  to  be  decided  in 
the  course  of  judicial  procedure;  or  in  those  States 
where  the  Legislature  had  the  right  to  ask  the  opinion 
of  the  Supreme  Court,  to  invoke  that  opinion  as  an 
aid  to  the  Legislature  as  to  the  validity  of  its  action, 
as  was  done  in  Connecticut,  New  Hampshire  and 
Vermont.  Or  it  was  possible  to  pass  a  soldiers' 
voting  bill,  and  at  the  same  time  to  amend  the 
Constitution  so  as  to  supply  the  lack  of  legisla- 
tive authority,  if  it  existed.  This  was  done  in 
Kansas,  and  attempted  to  be  done  in  Pennsylvania. 
There  was  then  the  objection  to  this  method  of 
taking  the  ballot  box  to  the  soldier  in  the  field,  that 
it  could  not  be  done  by  military  officers,  even  if  they 
were  authorized  to  do  it  by  the  State.  It  was  said 
that  voting  was  a  civil  matter,  which  was  under  the 
control  of  civil  officers,  answerable  for  the  performance 
of  their  duties  to  the  civil  and  not  the  military  power. 
This  view  was  strenuously  urged  by  Judge  Woodward 
in  Chase  v.  Miller.  It  was  claimed  that  if  there  was 
to  be  voting  in  the  field  at  all,  it  must  be  under  the 
direction  of  civil  officers  appointed  by  the  civil  power 
of  the  State  and  controlled  by  that  power,  and  that 
officers  or  soldiers  could  not  be  authorized  to  open  a 
poll  or  present  the  box  to  the  soldier  for  his  vote,  or 
canvass,  seal  up  and  return  the  votes  to  the  State  to 
be  counted.  This  was  an  objection  to  method  rather 
than  to  matter,  and  it  was  avoided  by  the  appoint- 
ment in  the  soldiers'  voting  acts,  of  officers  or  soldiers 
to  act  in  an  election  cw  constables,  supervisors,  etc., 
as  the  laws  of  the  State  might  designate,  would  act 
in  elections  at  home. 

The  method  of  proxy  voting  which  was  adopted  in 


18  VOTING  IN  THE  FIELD 

New  York,  Illinois  and  to  a  slight  extent  in  other 
States,  avoided  these  objections,  but  it  was  open  to 
the  objection  that  the  soldier's  vote  was  secret  and 
subject  to  many  contingencies  before  it  was  actually 
cast  into  the  box  in  the  home  precinct,  out  of  which 
fraud  might  arise;  that  this  gave  an  opportunity  for 
fraud  which  did  not  exist  under  the  other  method 
where  polls  were  open,  the  voters'  names  called,  and 
the  votes  cast  in  the  open  light  of  day.  But  all  this 
was  of  importance  only  as  to  votes  for  State  officers. 
All  the  State  constitutions  were  silent  as  to  the  place, 
time  or  manner  of  voting  for  presidential  electors 
and  members  of  Congress,  and  as  Congress  did  not 
fix  the  place  of  such  election,  therefore  the  state 
Legislatures  could  fix  it. 


CHAPTER  III 

SMALL  UNION  MAJORITY 

BUT  we  must  not  only  understand  what  the  right 
of  suffrage  was,  under  the  Constitutions  of  the 
States;  we  must  also  understand  the  small  popular 
majority  which  supported  the  Lincoln  administration 
in  the  prosecution  of  the  Civil  War.  We  are  apt  to 
think  of  the  war  as  being  waged  by  a  united  North. 
But  the  opposition  was  so  strong  in  many  of  the  States 
as  seriously  to  embarrass  the  administration.  The 
Democratic  party  remained  powerful  as  a  political 
organization,  especially  in  1862  and  1863.  It  was  an 
old  and  well-tried  party,  accustomed  to  act  together. 
The  patriotic  enthusiasm  with  which  the  North  began 
the  war  was  subdued  as  time  went  on,  and  nothing 
appeared  to  be  accomplished.  The  Republican  party, 
which  came  into  power  by  the  election  of  Lincoln  by 
a  minority  of  the  entire  popular  vote,  soon  began  to 
lose  its  hold  in  the  various  States. 

It  was  a  new  party  not  trained  and  seasoned  by  po- 
litical contests.  Its  members  were  not  held  together  by 
the  traditions  of  an  old  political  organization.  Its  votes 
were  necessarily  drawn  from  the  other  party,  and  were 
inclined  to  swing  back  to  their  old  allegiance  upon 
the  slightest  provocation.  For  instance,  after  Fremont 
had  carried  Connecticut,  Ohio,  Iowa,  Wisconsin  and 
New  York  by  very  handsome  majorities  in  1856,  in 
1857  Connecticut  gave  only  546  Republican  majority, 
Ohio,  1,481  majority,  Iowa  2,151  majority,  and  Wis- 


20  VOTING  IN  THE  FIELD 

consin  118  majority,  while  New  York  gave  18,057 
Democratic  plurality.1 

In  1860,  the  total  vote  cast  for  President  was 
4,662,170.  Of  these  Douglass  received  1,365,976; 
Breckenridge,  847,953;  and  Bell,  590,631;  leaving 
1,857,610  received  by  Lincoln,  which  was  946,950  less 
than  were  cast  for  Douglass,  Breckenridge  and  Bell. 

In  1860,  the  majorities  for  and  against  Lincoln  in 
the  different  States,  which  did  not  secede,  were  as 
follows :  — 

In  Maine,  27,770  in  a  total  vote  of  97,918. 

In  New  Hampshire,  9,115  in  a  total  vote  of  65,923. 

In  Massachusetts,  43,891  in  a  total  vote  of  169,175. 

In  Connecticut,  10,292  in  a  total  vote  of  77,292. 

In  Vermont,  14,972  in  a  total  vote  of  52,644. 

In  New  York,  50,136  in  a  total  vote  of  675,156. 

In  Rhode  Island,  4,537  in  a  total  vote  of  19,951. 

In  New  Jersey,  a  majority  against  Lincoln  of  4,477  in 
a  total  vote  of  121,125. 

In  Ohio,  32,184  in  a  total  vote  of  431,036. 

In  Pennsylvania,  59,618  in  a  total  vote  of  476,442. 

In  Indiana,  5,923  in  a  total  vote  of  272,143. 

In  Illinois,  4,629  in  a  total  vote  of  339,693. 

In  Michigan,  22,213  in  a  total  vote  of  154,747. 

In  Wisconsin,  20,040  in  a  total  vote  of  152,180. 

In  Minnesota,  9,401  in  a  total  vote  of  34,737. 

In  Iowa,  12,487  in  a  total  vote  of  128,331. 

In  California,  40,494  against  Lincoln  in  a  total  vote  of 
118,840. 

In  Oregon,  Lincoln  had  a  plurality  of  only  260  in  a 
total  vote  of  14,751. 

In  Delaware,  9,140  against  Lincoln  in  a  total  vote  of 
15,339. 

In  Maryland,  87,914  against  Lincoln  in  a  total  vote  of 
92,502. 

1  Greeley's  American  Conflict,  Vol.  1,  p.  300. 


SMALL  UNION  MAJORITY  21 

In  Kentucky,  143,488  against  Lincoln  in  a  total  vote 
of  146,216. 

In  Missouri,  131,462  against  Lincoln  in  a  total  vote  of 
165,518. 

In  1861,  the  majorities  were  as  follows: 

Maine,  Republican  majority,  36,356. 

New  Hampshire,  Republican,  4,015. 

Rhode  Island,  Republican,  1,644. 

Vermont,  Republican,  27,433. 

Connecticut,  Republican,  468. 

New  York  (Secretary  of  State)  Republican,  107,712. 

Maryland,  Republican,  31,412. 

Kentucky,  No  general  election,  9  Republican  Congress- 
men chosen,  and  one  Democratic. 

Ohio,  Republican,  55,203. 

Massachusetts,  Republican,  33,995. 

Wisconsin,  Republican,  8,320. 

Illinois,  election  for  delegates  to  Constitutional  Con- 
vention, large  Democratic  majority. 

California,  Republican,  23,286. 

Minnesota,  Republican,  5,826. 

Pennsylvania,  elections  for  House  and  Senate.  In  the 
Senate,  Republicans  23:  Democrats  10.  In  the  House, 
Republicans  45:  Democrats  56. 

Iowa,  Republican,  16,608. 

In  New  Jersey,  Indiana,  Michigan,  Oregon,  Dela- 
ware and  Missouri,  there  were  no  general  elections  in 
1861. 

But  in  1862,  the  majorities  were  as  follows: 

Maine,  Republican,  6,025. 
Rhode  Island,  Republican,  11,133. 
Massachusetts,  Republican,  28,248. 
New  Hampshire,  Republican,  3,584. 
Connecticut,  Republican,  9,148. 
New  York,  Democratic,  10,752. 
New  Jersey,  Democratic,  2,286. 


22  VOTING  IN  THE  FIELD 

Pennsylvania,  Democratic  majority  for  Auditor,  3,577. 
Senate,  Republicans,  21,  Democrats,  12.  House,  Republi- 
cans, 45,  Democrats,  55. 

California,  Republican,  13,907. 

Ohio,  Democratic  majority  (Secretary  of  State),  5,577. 

Oregon,  Republican  (Secretary  of  State),  3,280. 

Minnesota,  Republican  (Congressmen),  2,072. 

Indiana,  Democratic  (Secretary  of  State),  9,543. 
Both  Senate  and  House  Democratic. 

Illinois,  Democratic  (Both  Senate  and  House),  16,546. 

In  June,  1862,  Illinois  voted  on  a  new  Constitu- 
tion, Republicans  voting  against  it  and  Democrats 
for  it,  and  the  soldiers'  vote  in  the  State  was  10,151 
against  it,  and  1,687  for  it. 

Delaware,  Republican  Member  of  Congress,  both 
House  and  Senate  Democratic. 

Iowa,  Republican  (Secretary  of  State),  15,115. 

Soldiers  from  Iowa  voted  in  the  field  in  this  elec- 
tion, and  their  vote  was  14,862  Republican,  4,112, 
Democratic. 

Michigan,  Republican,  6,614. 

Wisconsin,  Republican  election  for  Congress,  Eldridge, 
5,542,  Sloane,  2,272,  Handschetts,  2,669. 

Wisconsin,  Democratic,  Brown,  2,149,  Wheeler,  1,000. 

At  this  election  soldiers  from  Wisconsin  also  voted 
in  the  field;  in  the  first  district  80  Republicans  and  43 
Democrats;  in  the  second  district,  217  Republicans  and 
85  Democrats,  which  were  rejected;  in  the  third  dis- 
trict, 556  Republicans,  and  65  Democrats;  in  the  fourth 
district  219  Republicans  and  31  Democrats,  which  were 
rejected;  in  the  fifth  district,  59  Republicans,  and 
24  Democrats,  which  were  rejected;  and  in  the  sixth 
district,  201  Republicans  and  31  Democrats. 

In  1863  the  majorities  still  swung  away  from  the 
Republican  party. 


SMALL  UNION  MAJORITY  23 

They  were  as  follows :  — 

Maine,  Republican,  17,716. 

New  Hampshire,  Republican  plurality,  574- 

Rhode  Island,  Republican  majority,  3,291. 

New  York,  Republican  (Secretary  of  State),  29,405. 

Connecticut,  Republican,  2,601. 

Pennsylvania,  Republican,  15,325.  Senate,  17  Republi- 
cans, 16  Democrats.  House,  52  Republicans,  48  Democrats. 
A  majority  of  only  one  in  the  Senate,  and  four  in  the  House. 

Michigan,  Republican  (Vote  for  Regent),  7,079. 

Ohio,  Republican  (including  39,179  majority  in  soldiers' 
vote),  101,099. 

New  Jersey,  Democratic,  9,374. 

Vermont,  Republican,  17,651. 

Massachusetts,  Republican,  41,276. 

Kentucky,  Republican  majority,  50,917. 

Delaware,  The  Republicans  elected  a  member  of  Con- 
gress without  opposition,  the  Democratic  candidate  having 
withdrawn  at  the  last  moment,  because  he  could  not  take 
the  oath  of  allegiance. 

West  Virginia,  Republican  ticket  unopposed,  Vote  25,797. 
Soldiers'  vote,  for  the  Constitution,  7,696,  against  it,  132. 

Maryland,  Republican  (Comptroller),  20,376. 

Illinois,  Republican  (State  Treasurer),  29,398. 

Minnesota,  Republican,  6,793. 

Iowa,  Republican  (Judge  of  Supreme  Court),  32,673. 
The  soldiers'  vote  was  17,435  Republican,  2,289  Demo- 
cratic, making  a  majority  in  the  soldiers'  vote  of  15,146. 

Wisconsin,  Republican  (including  7,693  majority  in 
soldiers'  vote),  24,711.  Soldiers'  vote  was  9,257  Repub- 
lican, 747  Democratic. 

It  is  worthy  of  notice  that  in  the  election  of  a 
Chief  Justice  of  the  Supreme  Court  of  Wisconsin  in 
April,  1863,  the  Democratic  candidate  had  a  majority 
of  4,892  of  the  home  vote,  and  the  Republican  candi- 
date had  a  majority  of  7,693  of  the  soldiers'  vote, 
which  elected  the  Republican  by  2,801. 


24  VOTING  IN  THE   FIELD 

California,  Republican,  19,732. 

In  Kansas,  Indiana  and  Oregon  there  was  no 
general  election  in  1863. 

The  border  States  of  Missouri,  Kentucky  and  Mary- 
land remained  Republican,  mainly  because  they  had 
adopted  test  oath  qualifications  for  their  voters  which 
excluded  a  large  part  of  the  Democratic  vote. 

The  Emancipation  proclamation  was  issued  Sep- 
tember 23,  1862  and  conscription  was  ordered  March 
3,  1863. 

These  votes  in  the  elections  of  1862  resulted  as 
follows:  Maine  voted  in  September,  1862.  The  normal 
Republican  majority  had  been  from  ten  to  nineteen 
thousand  for  years.  Its  majority  fell  to  a  little  over 
6,025,  and  it  lost  one  Republican  representative  in 
Congress. 

In  October,  1862,  Ohio  changed  its  13  Republican 
representatives  to  5,  and  the  Democrats  prevailed  in 
14  of  the  Congressional  districts.  There  was  at  the 
same  time  a  Democratic  popular  majority  of  5,577. 

In  1862,  in  Indiana  the  Republicans  retained  only 
3  of  the  11  Congressmen,  and  the  Senate  and  House 
were  Democratic  and  sent  a  Democrat  to  the  Senate, 
and  the  Democrats  had  a  majority  in  the  popular 
vote  of  9,543. 

Pennsylvania  went  Democratic  in  1862  by  a 
majority  of  3,577,  and  the  Democrats  elected  half  the 
delegation  in  Congress  and  had  a  majority  of  ten  in 
the  state  House.  This  was  a  change  from  a  majority 
of  76,383  for  Lincoln  in  1860. 

In  1862,  in  New  York,  General  James  S.  Wads  worth, 
a  former  Democrat  of  very  great  personal  popularity, 
who  was  then  in  the  Army  with  the  rank  of  Brigadier 
General,  was  nominated  by  the  Republicans.  Horatio 


SMALL  UNION  MAJORITY  25 

Seymour,  an  ultra  partizan  Democrat,  was  nominated 
by  the  Democrats,  and  was  elected  by  a  majority  of 
10,752.  General  Wadsworth's  vote  fell  61,221  from  the 
50,136  majority  received  by  Lincoln  in  1860. 

The  election  of  Seymour  defeated  the  soldiers'  vot- 
ing bill  in  New  York  in  1863,  by  the  Governor's  veto. 

Illinois,  the  President's  own  State,  was  carried  by 
the  Democracy  in  1862  by  a  majority  of  16,546,  and 
only  3  out  of  the  14  representatives  in  Congress  were 
returned  by  the  Republicans.  The  Legislature  was 
Democratic  and  returned  a  Democrat  to  the  Senate. 

In  New  Jersey  a  Democratic  Governor  was  elected 
in  1862  by  nearly  15,000  majority,  and  4  of  her  5 
representatives  in  Congress  were  Democratic. 

Michigan,  which  Lincoln  had  carried  in  1860  by 
22,213,  reduced  its  majority  to  6,614  in  1862,  while 
Wisconsin,  which  had  given  Lincoln  a  majority  of 
20,040  in  1860,  gave  a  Democratic  majority  of  2,000, 
and  divided  the  Congressional  delegation  equally  with 
the  Republicans  in  1862. 

The  great  States  of  New  York,  Pennsylvania,  Ohio, 
Indiana,  Illinois  and  Wisconsin  went  against  the  Ad- 
ministration. Only  the  votes  of  New  England  and  of 
Michigan,  Iowa  and  California  aided  by  those  of  the 
border  States  maintained  the  majority  for  the  Union 
in  the  National  House.  It  was  almost  a  vote  of  a 
want  of  confidence  in  the  Lincoln  Administration. 

The  result  was  to  embolden  the  Democracy,  cause 
them  to  draw  their  lines  closer,  and  to  oppose  the 
administration  more  vigorously.  Hence  the  contests 
about  the  soldiers'  voting  bills.  Such  bills  had  been 
passed  in  Iowa,  Minnesota,  Missouri,  Wisconsin,  Ver- 
mont and  Ohio  in  1862,  and  in  1863.  They  were  passed 
in  Kansas,  Maine,  Pennsylvania,  Connecticut,  New 
Hampshire,  Maryland,  Michigan,  and  New  York  in  1864. 


26  VOTING  IN  THE   FIELD 

Now,  the  margin  in  some  of  these  States  on  the 
popular  vote  in  the  election  of  1862  and  1863  was  so 
small  that  the  vote  of  the  soldiers  in  the  field  might 
well  be  expected  to  control  the  election.  As  a  matter 
of  fact,  it  did  not  have  any  special  effect  except  in 
Maryland,  but  that  was  because  the  rising  tide  of 
Unionism  was  so  strong  as  to  overcome  the  Democratic 
opposition  by  majorities  so  large  as  to  make  the 
soldiers'  vote  a  negligible  quantity.  Northern  victories 
began  with  Vicksburg  which  surrendered  on  July  4, 1863, 
with  Gettysburg  which  was  fought  on  the  first,  second 
and  third  of  July,  1863,  and  continued  with  the  battle 
of  Mobile  Bay  in  August,  1864,  the  capture  of  Atlanta, 
on  September  1,  and  the  battle  of  Winchester  which 
was  fought  on  September  20,  1864.  The  political  tide 
ran  with  the  tide  of  battle,  and  as  if  to  make  a 
Republican  victory  sure,  the  Democrats  nominated 
the  rebel  Vallandigham  as  Governor  of  Ohio,  and 
McClellan  for  President  upon  a  platform  which  de- 
clared the  war  a  failure. 

In  October  1864  Pennsylvania,  Indiana  and  Ohio 
went  Union  by  very  large  majorities,  Vallandigham 
being  beaten  in  Ohio  by  a  majority  of  more  than  one 
hundred  thousand  votes.  In  November  Lincoln  car- 
ried all  the  States  except  New  Jersey,  Delaware  and 
Kentucky,  while  the  Republican  party  had  a  two-third 
majority  in  the  House,  and  yet  in  the  popular  vote 
Lincoln  had  only  2,223,035  while  McClellan  had 
1,811,754,  Lincoln's  majority  being  only  ten  and  two 
tenths  per  cent  of  the  entire  vote. 

This  rendered  all  the  soldiers'  votes  except  in 
Maryland  of  little  consequence  in  the  elections. 

We  will  now  take  up  the  legislation  of  the  different 
States  in  the  order  of  time. 


CHAPTER  IV 

VOTING  ACTS  IN  THE  SOUTH 

WHEN  the  Southern  States  seceded,  they 
adopted  new  Constitutions  which  were  gen- 
erally substantially  the  old  Constitutions,  with  a  pro- 
vision for  the  election  of  Electors  and  Representatives 
changed  from  the  United  States  to  the  Confederate 
States  Electors  and  Representatives.  They  also 
nearly  all  dealt  with  the  question  of  permitting  sol- 
diers to  vote  in  the  field.  This  they  did  in  some 
cases  by  statutes,  and  in  other  cases,  where  the  Con- 
stitution fixed  the  places  of  voting,  by  ordinances 
which  were  passed  by  the  Secession  Conventions,  and 
were  treated  as  amendments  to  the  Constitution,  or 
at  least  as  having  equal  authority  with  the  provi- 
sions of  the  Constitution.  This  was  the  case  in  Vir- 
ginia where  the  Secession  Convention  of  1861  passed 
an  ordinance  to  authorize  voting  in  the  field;  and  in 
South  Carolina,  where  an  act  was  first  passed  in 
1861,  and  then  a  substitute  ordinance  was  passed  by 
the  Convention  in  1862;  and  in  North  Carolina 
where  an  ordinance  was  passed  by  the  Secession 
Convention  of  1861,  authorizing  soldiers  to  vote  for 
delegates  to  that  Convention.  Also  in  Tennessee, 
where  the  act  of  the  Legislature  calling  the  Secession 
Convention  contained  a  provision  authorizing  soldiers 
in  the  field  to  vote  for  delegates  to  that  Convention. 
Of  the  eleven  Southern  States  which  made  up  the 
Confederacy,  seven  passed  soldiers'  voting  laws  in  1861 
as  follows: 


28  VOTING  IN  THE  FIELD 

North  Carolina,  May  8;  Tennessee,  May  9; 
Virginia,  July  1;  Alabama,  October  30;  Georgia, 
December  14;  South  Carolina,  December  21;  and 
Florida,  January  25,  1861. 

It  is  interesting  to  note  that  these  acts  were 
passed  at  the  time  the  States  seceded,  so  as  to  enable 
their  soldiers  to  vote  in  the  field  upon  the  secession, 
or  very  soon  after  the  States  seceded.  The  dates  of 
the  secession  of  these  States  were  as  follows: 

North  Carolina,  May  20,  1861;  Tennessee,  June  8, 
1861;  Virginia,  May  23,  1861;  Alabama,  January  11, 
1861;  Georgia,  January  19,  1861;  South  Carolina, 
December  20,  1860;  Florida,  January  10,  1861. 

The  other  four  States  seceded  at  the  following 
dates :  — 

Mississippi,  January  9,  1861;  Louisiana,  January 
9,  1861;  Texas,  February  23,  1861;  Arkansas  May  6, 
1861.  They  do  not  appear  to  have  passed  any  laws 
with  regard  to  soldiers'  voting  in  the  field.  There 
was  a  good  reason  why  Louisiana  should  not  do  so. 
New  Orleans  was  taken  April  29,  1862,  by  the  Fed- 
eral Army,  and  thereafter  remained  in  its  possession, 
so  that  there  was  really  no  State  government  capable 
of  making  laws  of  any  kind,  during  the  war.  Texas 
and  Arkansas  were  large  States  with  a  sparse  popula- 
tion, and  apparently  no  interest  was  taken  in  the 
subject.  Why  Mississippi  did  not  pass  a  law,  I  do 
not  know. 

In  some  of  these  States  the  Constitution  fixed 
places  of  voting,  and  in  others  no  place  was  fixed. 
But  in  cases  where  the  Constitution  fixed  the  place 
of  voting,  action  seems  to  have  been  taken  in  the  form 
of  ordinances  issued  by  the  Conventions  which  were 
called  to  act  upon  the  question  of  secession,  and  in 
many  cases  remained  in  session  for  a  longer  or 


VOTING  ACTS  IN  THE  SOUTH          29 

shorter  time  after  they  voted  the  State  out  of  the 
Union.  Diligent  inquiry  fails  to  discover  any  record 
of  voting  in  the  field  under  any  of  these  laws.  The 
soldiers  doubtless  did  vote,  and  their  votes  were 
canvassed  as  the  law  provided,  without  doubt,  but 
how  long  this  prevailed,  and  to  what  extent,  it  is 
now  impossible  to  tell. 

In  none  of  these  statutes  was  there  any  provision 
for  taking  the  votes  of  sailors  in  the  Confederate 
States,  unless  the  words,  "military  service"  compre- 
hended persons  engaged  in  naval  service.  Probably, 
nothing  was  thought  about  it,  as  the  Confederacy 
really  had  no  navy,  or  it  was  deemed  impossible  to 
frame  a  law  for  taking  the  sailors'  votes  fairly. 
There  does  not  seem  to  have  been  any  reason  for 
these  Southern  statutes,  except  the  desire  to  preserve 
to  soldiers  who  enlisted  the  rights  which  they  had  at 
home.  There  was  no  occasion  for  soldiers  to  vote  to 
control  the  elections  in  any  Southern  States.  After 
secession  there  was  practically  but  one  party  in  the 
South.  There  were  no  close  states  which  it  was 
thought  might  be  carried  by  the  soldiers'  voting  in 
the  field,  as  was  the  case  in  the  North.  Soldiers' 
voting  acts  in  the  South  must,  therefore,  all  be  re- 
garded as  having  been  passed  solely  for  the  purpose  of 
preserving  to  the  soldier  his  inalienable  right  to  take 
part  in  the  government  of  the  country  by  voting. 
At  first  everybody  volunteered  in  the  South  as  well 
as  in  the  North.  There  were  more  troops  tendered 
to  the  government  than  were  necessary  or  could  be 
equipped.  But  as  early  as  April,  1862,  the  President 
of  the  Southern  Confederacy  was  authorized  to  call 
into  the  army  all  able-bodied  white  men  between  the 
ages  of  18  and  35  years,  which  was  extended  in 
September,  1862,  to  the  maximum  of  45  years,  as 


30  VOTING  IN  THE  FIELD 

of  July  1st,  1863;  and  in  February,  1864,  he  was 
authorized  to  call  all  able-bodied  white  men  between 
the  ages  of  17  and  50  years.1 

The  conscription  in  the  North  came  later,  on 
March  3,  1863,  when  the  President  was  authorized 
to  call  into  the  army  all  able-bodied  men  between 
the  ages  of  20  and  45  years. 

These  provisions  of  the  ordinances  and  acts  of 
the  Southern  States  are  all  either  limited  by  their 
terms  to  the  continuance  of  the  war  between  the 
States,  or  such  limitation  is  necessarily  implied  from 
their  terms.  They  all  disappeared  when  the  war 
ended,  and  there  has  been  no  occasion  in  the  Southern 
States  to  pass  laws  permitting  soldiers  to  vote  out 
of  the  State  since  the  close  of  the  Civil  War. 

NORTH  CAROLINA 

The  first  legislation,  north  or  south,  authorizing 
soldiers  to  vote  in  the  field  was  in  North  Carolina. 
On  the  first  day  of  May,  1861,  an  act  of  the  Legis- 
lature was  passed  requiring  the  Governor  to  call  a 
Convention  for  the  20th  of  May  in  that  year,  and  by 
a  supplemental  act,  passed  on  the  8th  of  May,  1861, 
the  soldiers  were  given  the  right  to  vote  for  delegates 
to  the  Convention  "in  their  encampments  precisely 
as  if  they  were  residing  in  their  several  counties." 
The  captain,  or  other  officer  in  command  of  the  sev- 
eral companies,  was  required  to  open  polls  in  the 
respective  camps  and  conduct  the  election  in  the  same 
way  in  the  camps  as  the  sheriffs  would  conduct  it 
in  the  several  counties.2 

The  Convention  was  called  and  met  on  the  twen- 


1  Southern  Statutes  at  large,  Ch.  3;  Moore's  Rebellion  Record,  Vol.  7,  p.  210. 

2  Ch.  9,  10,  Laws  North  Carolina,  First  Extra  Session,  1861. 


VOTING  ACTS  IN  THE  SOUTH          31 

tieth  of  May,  1861.  It  apparently  occurred  to  the 
Convention  that  under  the  Constitution  soldiers 
could  not  be  authorized  to  vote  by  an  act  of  the 
Legislature,  and  therefore  they  passed  an  ordinance 
to  extend  the  right  of  suffrage  to  volunteers  during 
the  "continuance  of  the  war  existing  between  the 
Confederate  States  and  the  United  States."  This 
ordinance  was  reported  from  the  Committee  on 
June  18,  considered  and  amended  on  June  22  and 
June  24,  and  finally  considered  on  June  27.  There 
wras  much  opposition  to  its  passage.  There  were 
motions  to  adjourn,  and  for  reference  to  a  Committee 
with  instruction,  &c.  It  was  finally  amended,  passed 
and  ordered  to  be  enrolled.1 

May  8,  1862,  this  ordinance  was  amended  by 
another  ordinance  which  required  the  returning  officers 
of  every  county  to  include  in  their  returns  the  votes 
of  officers  and  soldiers  given  in  any  election  in  which 
they  might  be  entitled  to  vote  by  law,  if  received 
within  twenty  days  after  they  were  cast,  and  the 
returning  officers  were  directed  not  to  declare  the 
result  of  the  elections  until  the  expiration  of  twenty 
days.  This  ordinance  required  the  Governor  to  make 
known  by  proclamation  the  provisions  of  the  ordi- 
nance securing  to  officers  and  soldiers  the  right  to 
vote.2  The  soldiers  continued  to  vote  under  this 
ordinance  during  the  war,  and  in  1864,  the  time  within 
which  the  returns  of  the  votes  of  officers  and  soldiers 
should  be  counted  wTas  extended  to  twenty  days 
after  they  were  cast.3 


1  Journal  of  State  Convention,  1861,  pp.  115,  153,  156-7,  184,  186. 

2  Laws  of  North  Carolina,  1863,  p.  75,  Ordinance  18. 

3  Chapter  10,  Laws  of  North  Carolina,  1864. 


32  VOTING  IN   THE  FIELD 


TENNESSEE 

The  next  legislation  authorizing  soldiers  to  vote 
in  the  field  was  in  Tennessee.  May  9,  1861,  the  Leg- 
islature passed  "An  Act  to  amend  the  Militia  Law 
of  the  State  requiring  Captains  to  give  notice,  and 
for  other  purposes."  This  act  authorized  soldiers 
in  the  field  to  vote  upon  the  question  of  passing  the 
ordinance  of  secession,  although  they  might  be  out 
of  the  State  at  the  time.1 

When  the  ordinance  adopting  or  rejecting  the  per- 
manent Constitution  of  the  Confederate  States  was 
submitted  to  the  people  another  act  was  passed  on 
June  28,  1861,  which  ratified  and  adopted  the  Con- 
stitution of  the  Confederate  States,  and  constituted 
Tennessee  a  member  of  the  government  established 
by  said  Constitution.  It  then  provided  for  a  popu- 
lar vote  in  which  those  who  desired  secession  should 
vote  for  the  Constitution,  and  those  opposed  should 
vote  against  it. 

Under  the  Constitution  of  Tennessee  no  man  could 
vote  out  of  his  own  county,  and  yet,  by  the  fifth  and 
sixth  sections  of  this  act,  it  was  provided  that  all 
such  persons,  being  volunteers  in  actual  service, 
and  officers  of  the  army,  might  vote  in  any  county 
where  their  service  might  require  them  to  be  at  that 
time,  and  it  was  also  provided  that  "All  volunteers 
in  actual  service  out  of  the  limits  of  the  State  on 
the  day  of  election,  but  who  if  in  their  proper  counties 
would  be  entitled  to  vote,  shall  be  entitled  to  vote 
in  said  election.  And  to  provide  them  with  the  means 
of  voting,  it  is  made  the  duty  of  the  Captains  of  the 
companies  to  which  they  may  belong  on  the  day  of 

1  Public  Acts  of  Tennessee,  Extra  Session,  1861,  p.  37. 


VOTING  ACTS  IN  THE   SOUTH  33 

the  election,  to  open  and  hold  an  election  for  them. 
They  shall  vote  by  ballot,  and  the  result  shall  be 
returned  in  writing  to  the  Secretary  of  State,  and 
constitute  a  part  of  the  vote  of  the  State;  but  before 
opening  said  election  each  Captain  shall  be  sworn 
by  the  Colonel  or  Lieutenant  Colonel  of  his  regiment 
to  act  impartially,  and  to  receive  no  illegal  votes." 
Under  this  authority  2,456  soldiers  voted  in  the 
field  out  of  the  State,  and  every  one  of  them,  it  is 
said,  for  the  adoption  of  the  secession  ordinance  and 
Constitution.  The  returns  are  said  to  be  on  file  in 
the  office  of  the  Secretary  of  State  at  Nashville.1 

VIRGINIA 

In  Virginia  a  distinction  appears  to  have  been 
taken  between  authorizing  voting  out  of  the  State 
for  presidential  electors  and  for  members  of  Congress, 
and  authorizing  voting  out  of  the  State  for  State 
officers.  In  July,  1861,  the  qualified  voters  were 
authorized  to  vote  at  the  place  of  their  encampment, 
whether  within  or  without  the  State,  for  electors  of 
President  and  Vice-president  and  for  members  of 
Congress. 

In  December,  1861,  they  were  authorized  to  vote 
at  their  encampments,  whether  within  or  without 
the  State,  for  members  of  the  General  Assembly, 
separate  polls  being  opened  therefor.  In  both  cases 
the  commander  of  the  troops  was  to  appoint  com- 
missioners to  take  the  votes,  who  were  to  be  sworn 
to  act  under  the  election  laws  of  the  State.  A  return 
was  to  be  made  by  the  commissioners  with  the  poll- 
book  used  at  the  election  and  the  tickets  given  by 
the  voters.  All  these  were  to  be  sent  "by  special 

1  Tennessee  and  the  Civil  War,  Temple,  p.  208. 


34  VOTING  IN  THE   FIELD 

commissioner  appointed  by  the  commander"  to  the 
governor.  The  ordinance  then  provided  for  the  proper 
counting  of  the  votes  with  other  votes  cast  at  the 
election  in  the  State. 

The  December  ordinance  also  contained  the  pro- 
vision that  the  voters  of  any  county  or  corporation 
"absent  therefrom  because  of  the  presence  of  the 
public  enemy,  might  during  the  continuance  of  the 
present  war"  vote  for  members  of  the  General  Assem- 
bly for  their  counties  or  corporations  at  the  court 
house  of  any  county  or  corporation  in  the  State  where 
they  might  happen  to  be  on  the  day  of  election. 
And  finally  the  ordinance  gave  power  to  the  General 
Assembly  "to  make  such  laws  during  the  existing 
war  as  may  be  requisite  to  authorize  the  qualified 
voters  to  vote  at  their  encampments."  l 

ALABAMA 

In  Alabama,  the  General  Assembly  on  October 
30,  1861,  passed  an  act  "to  prevent  the  practical 
disfranchisement  of  the  volunteers  from  Alabama, 
and  of  the  members  of  the  General  Assembly  of 
the  State  of  Alabama,  in  the  next  Congressional 
and  Presidential  election."  This  act,  it  will  be  ob- 
served, applied  only  to  the  election  of  presidential 
electors  and  members  of  Congress.  The  right  was 
given  to  volunteers  "to  vote  by  ballot  at  any  place 
where  they  may  be  on  the  day  of  election,  whether 
in  or  out  of  this  State.  Any  two  commissioned 
officers,  being  qualified  electors  of  the  State  of  Ala- 
bama, in  the  military  service  of  the  Confederate 

1  Journal  of  the  Convention  of  Virginia  in  Secret  Session  1861,  No.  79, 
p.  74;  Journal  of  the  Convention  of  Virginia,  Adjourned  Session  November  and 
December,  1861,  p.  10. 


VOTING  ACTS  IN  THE  SOUTH          35 

States,  are  authorized  to  open  polls  on  the  day  of 
election  between  the  hours  of  six  o'clock  in  the  fore- 
noon and  six  o'clock  in  the  afternoon,  for  each  con- 
gressional district  in  the  State,  and  to  receive  the 
ballots  of  volunteers  who  are  electors  by  the  law  of 
the  State,  for  eleven  electors  of  President  and  Vice- 
president,  and  for  one  representative  in  the  Congress 
of  the  Confederate  States."  They  were  required  to 
conduct  and  manage  the  election  so  that  no  vol- 
unteer should  vote  for  a  representative  of  any  other 
congressional  district  than  that  in  which  he  resided 
at  the  time  of  volunteering.  The  officers  managing 
the  election  were  required  to  count  the  votes,  make 
a  statement  of  the  same  in  writing  with  a  list  of  the 
names  of  the  voters  and  the  county  of  their  residence, 
which  statement  was  to  be  signed  by  them  and  sealed 
and  directed  "to  the  Secretary  of  the  State  of  Ala- 
bama at  Montgomery,  and  sent  either  by  mail  or  by 
messenger  without  unnecessary  delay."  There  was 
a  further  provision  that  on  the  twenty-sixth  day  of 
November  next,  or  within  two  days  thereafter,  the 
Governor  of  the  State,  Comptroller  and  Treasurer, 
or  either  of  them,  should  ascertain  the  result  of  the 
election  and  notify  the  persons  who  were  elected. 
The  act  provided  that  all  its  provisions  should  apply 
to  any  election  that  it  might  be  necessary  to  hold 
for  a  representative  to  Congress  in  any  district  during 
the  next  two  years. 

There  was  then  a  further  provision  that  the  mem- 
bers of  the  General  Assembly  of  Alabama  should  have 
the  right  to  vote  in  the  county  of  Montgomery,  in 
which  the  State  Capitol  was,  for  electors  of  Presi- 
dent and  Vice-president  at  the  next  election.  This 
followed  the  practice  in  Vermont,  of  permitting  the 
members  of  the  General  Assembly  who  were  at  the 


36  VOTING  IN  THE  FIELD 

State  Capitol  in  the  discharge  of  their  duties,  to 
vote  there  for  electors  of  President  and  Vice  Presi- 
dent instead  of  being  required  to  go  to  their  homes 
for  that  purpose.1 

GEORGIA 

In  Georgia,  the  Legislature  passed  an  act  on  De- 
cember 14,  1861,  authorizing  all  voters  to  assemble 
on  the  day  of  a  State  election  "at  such  place  as  they 
may  be  stationed  at  or  in  service,  and  cast  their 
votes  as  if  they  were  in  their  respective  counties." 
The  act  provided  that  two  commissioned  officers  of 
the  company,  battalion  or  regiment  should  hold 
such  elections  in  the  same  manner  that  was  provided 
by  law  for  holding  such  elections  in  the  State,  and 
should  make  returns  of  the  same  with  a  list  of  the 
voters  and  a  copy  of  the  tally  sheet,  to  the  clerk  of 
the  court  of  the  county  where  the  person  voting 
resided,  and  also  to  the  "executive  department." 
It  also  provided  that  all  elections  thus  held  in  the 
field  should  be  counted  good  and  valid  provided  the 
returns  should  reach  the  executive  department  "within 
fifteen  days  after  the  day  of  the  election."  2 

SOUTH  CAROLINA 

In  South  Carolina  an  Act  was  passed  by  the 
General  Assembly  on  December  21,  1861,  "to 
enable  volunteers  in  the  military  service  to  exer- 
cise the  right  of  suffrage."  This  Act  was  by  its 
terms  to  be  in  effect  "during  the  continuance  of  the 
existing  war  between  the  United  States  and  the 

1  Acts  of  the  General  Assembly  of  Alabama,  Second  Called  Session,  1861, 
First  Regular  Session,  1861-2,  page  79. 

*  Acts,  General  Assembly  of  Georgia,  1861,  p.  31. 


VOTING  ACTS  IN  THE  SOUTH          37 

Confederate  States  of  America."  It  provided  that 
officers  and  soldiers  who  should  be  absent  from  home 
in  the  military  service  of  the  country  should  have 
the  same  right  to  vote  as  if  present  in  their  respec- 
tive election  districts.  It  authorized  the  commis- 
sioned officer  on  duty  commanding  any  company  of 
volunteers,  after  being  first  duly  sworn  to  manage 
the  election  fairly  and  impartially  according  to  law, 
"to  open  a  poll  from  twelve  o'clock  noon  until 
two  o'clock  in  the  afternoon  in  their  respective  com- 
panies on  the  day  fixed  for  any  election,  and  to  re- 
ceive the  votes  of  all  volunteers  who  were  qualified 
to  vote  under  the  existing  law  of  this  State."  It  then 
required  the  managers  of  the  election  to  count  the 
ballots  and  certify  a  statement  of  the  result  and  dis- 
patch the  same  with  a  list  of  the  names  of  the  voters, 
"by  mail  or  by  special  messenger."  If  the  election 
was  for  members  of  Congress,  the  certificate  and  bal- 
lots were  to  go  to  the  Governor  or  to  the  Secretary 
of  State,  and  if  for  members  of  the  General  Assembly 
or  any  State  officer,  the  certificate  was  to  go  to  the 
Clerks  of  the  Courts  of  the  respective  judicial  dis- 
tricts, and  it  was  made  the  duty  of  the  clerks  to 
receive  and  be  responsible  for  the  returns.  It  was 
then  made  the  duty  of  the  "managers  of  the  several 
election  districts"  in  the  State,  to  re-assemble  at 
the  place  appointed  by  law  for  counting  the  ballots 
"on  the  first  Saturday  next  ensuing  in  such  election" 
and  to  count  the  votes  received  from  the  army  and 
"to  aggregate  the  returns  then  received  with  the 
returns  which  had  been  previously  made  from  the 
district  precincts,  and  declare  the  election  thereon, 
as  is  now  provided  by  law."  l 


Acts  of  the  General  Assembly  of  the  State  of  South  Carolina,  1861,  pp.  20-21. 


38  VOTING  IN  THE  FIELD 

On  January  6,  1862,  a  substitute  ordinance  was 
adopted  by  the  State  Convention  of  South  Carolina, 
entitled  "An  ordinance  to  enable  citizens  of  this 
State  who  are  engaged  in  military  service  to  exercise 
the  right  of  suffrage."  This  ordinance  provided  that 
it  should  be  the  "privilege  of  voters  when  any  two 
of  the  same  might  be  in  the  same  camp  or  other  place 
where  soldiers  are  congregated,  to  have  a  poll  opened 
at  each  camp."  The  managers  of  the  polls  were  to 
count  the  ballots  cast,  make  a  schedule  of  them  and  a 
certificate,  and  transmit  the  same  "at  the  expense 
of  the  voters"  to  the  proper  officer  of  the  State  to 
be  counted.  This  ordinance  allowed  the  polls  of  sol- 
diers voting  out  of  the  State  to  be  "opened  on  any 
day  within  ten  days  before  the  day  fixed  for  the  elec- 
tion in  the  election  district  of  the  State.  The  execu- 
tive authority  was  required  to  prepare  and  send  to 
the  colonels  of  the  various  regiments  of  the  State 
blank  forms  for  schedules  and  certificates,  and  finally 
the  ordinance  provided  that  "this  ordinance  shall 
continue  in  force  only  during  the  continuance  of  the 
war  between  the  Confederate  States  of  America  and 
the  United  States."  l 

FLORIDA 

In  Florida  an  ordinance  was  passed  January  25, 
1861,  by  the  Convention  which  passed  the  Ordinance 
of  Secession,  providing  that  voters  who  were  absent 
from  the  county  of  their  residence  in  the  military 
service  of  the  State  or  of  the  Confederate  States  on 
the  day  of  election  for  representatives  or  senators  in 
the  General  Assembly  or  representatives  in  the  Con- 
federate Congress,  might  vote  at  such  place  or  places 

1  Convention  Journal  of  South  Carolina,  1862,  p.  785. 


VOTING  ACTS  IN  THE  SOUTH          39 

within  their  post  or  encampment  as  the  officer  highest 
in  command  of  such  post  being  a  citizen  of  Florida, 
might  designate,  whether  such  post  or  encampment 
was  in  the  State  or  not.  Such  officer  was  to  appoint 
a  superintendent  and  three  inspectors  of  the  election 
who  were  to  be  duly  sworn  and  who  were  to  conduct 
the  election  as  required  by  the  ordinance.  The 
inspectors  of  the  election  were  to  make  out  their  re- 
turns "five  days  after  such  election  is  held,"  and 
send  the  same  by  a  special  messenger  appointed  by 
the  officer  in  command  who  ordered  the  election. 
Such  messengers  were  to  "receive  for  their  services 
and  actual  travelling  expenses  a  per  diem  of  $2.00."  l 

At  the  General  Assembly  of  Florida,  begun  on 
November  17,  1862,  an  act  was  passed  "to  authorize 
the  canvass  of  returns  of  elections  held  by  the  troops 
in  the  service  of  this  State  or  of  the  Confederate 
States."  It  provided  that  in  all  elections  for  repre- 
sentatives in  the  General  Assembly,  which  were  held 
in  military  camps  under  the  provisions  of  the  Con- 
vention ordinance  of  January  1862,  the  officer  high- 
est in  command,  being  a  citizen  of  Florida,  should 
designate  as  many  places  for  voting  within  the  post 
or  encampment,  as  there  were  counties  in  the  State 
from  which  men  came  in  the  command,  and  that  no 
person  from  one  county  should  vote  at  the  place 
designated  for  another  county.  It  then  provided 
that  the  provisions  of  the  act  to  amend  the  election 
laws,  approved  on  the  eighth  day  of  December,  1862, 
should  be  applicable,  so  far  as  they  could  be,  to  all 
elections  held  in  military  camps  under  the  ordinance 
of  January,  1862. 

The  act  then  provided  that  returns  of  all  elections 

1  Constitution  and  Ordinances  of  the  Convention  of  Florida,  Called  Session 
January  3,  1862,  pp.  33-34. 


40  VOTING  IN  THE  FIELD 

held  in  military  camps  should  be  certified  and  sealed 
up  with  the  ballots  cast  and  sent  to  the  Judge  of 
Probate  of  the  county  from  which  the  men  came  who 
had  voted  in  said  election.  But  if  the  election  was 
for  representatives  in  Congress  and  for  senators  in 
the  General  Assembly,  then  the  election  returns  were 
to  go  to  the  Secretary  of  State.  In  every  case  the 
election  returns  were  "to  be  sent  by  a  trusty  person, 
to  be  appointed  by  the  officer  in  command  who 
should  be  sworn  to  deliver  them  to  the  postmaster 
at  the  nearest  post-office,"  and  all  postage  which 
should  be  paid  by  such  person  on  any  package  con- 
taining the  election  returns  should  "be  audited  and 
allowed  by  the  Comptroller  of  the  State  on  presen- 
tation of  the  receipt  of  the  postmaster  for  such  post- 
age with  the  stamp  affixed."  The  Board  of  County 
Canvassers  was  required  on  the  twentieth  day  after 
the  election  to  canvass  and  count  the  votes  given 
in  the  military  camps,  but  during  the  continuance  of 
the  war  the  Judges  of  Probate  were  to  suspend  the 
burning  of  the  packages  of  ballots  as  provided  for 
by  law  until  the  expiration  of  thirty  days  after  the 
election.  This  act  repealed  all  laws  and  parts  of 
laws,  and  all  parts  of  the  ordinance  of  January, 
1862,  which  conflict  with  its  provisions.  The  act 
took  effect  December  15,  1862.1 


1  Acts  and  Resolutions  of  the  General  Assembly  of  Florida,  November  17, 
1862,  p.  55,  Ch.  1379,  No.  63. 


CHAPTER  V 

MISSOURI 

EARLY  in  January,  1861,  the  General  Assembly  of 
Missouri  passed  an  act  providing  for  an  election 
on  February  18,  1861,  of  delegates  to  a  State  Con- 
vention to  be  held  on  the  twenty-eighth  of  February, 
1861.  There  were  to  be  three  times  as  many  dele- 
gates as  each  district  was  entitled  to  members  in  the 
State  Senate.  The  Convention  was 

"To  consider  the  then  existing  relations  between  the 
government  of  the  United  States,  the  people,  and  the 
governments  of  the  different  States,  and  the  government 
and  people  of  the  State  of  Missouri;  and  to  adopt  such 
measures  for  vindicating  the  sovereignty  of  the  State  and 
the  protection  of  its  institutions  as  shall  appear  to  them  to 
be  demanded." 

It  was  expected  that  this  Convention  would  pass, 
or  recommend  to  the  people  to  be  passed,  an  ordi- 
nance of  secession.  But  the  tenth  section  of  the  bill 
for  the  calling  of  the  Convention  provided  that 

"No  act,  ordinance  or  resolution  of  said  Convention 
shall  be  deemed  to  be  valid  to  change  or  dissolve  the  politi- 
cal relations  of  this  State  to  the  government  of  the  United 
States,  or  any  other  State,  until  a  majority  of  the  qualified 
voters  of  this  State  voting  upon  the  question  shall  ratify 
the  same."  l 

This  section  was  adopted  in  the  State  Senate  by 
a  majority  of  only  two. 

1  Laws  of  Missouri  (January  21),  1861. 


42  VOTING  IN  THE  FIELD 

Contrary  to  the  general  expectation,  the  votes 
for  delegates  disclosed  a  popular  majority  of  about 
80,000  votes  in  favor  of  the  Union.  Missouri 
was  saved  to  the  Union  by  Frank  P.  Blair  and 
Nathaniel  Lyon.  Blair  managed  the  campaign  which 
carried  the  State  for  the  Union,  and  elected  a 
majority  of  Union  delegates  to  the  Convention 
which  had  been  called  by  the  Democratic  Legis- 
lature. In  co-operation  with  the  German  citi- 
zens of  St.  Louis,  who  were  all  Union  men,  and 
working  with  Blair,  Lyon  succeeded  under  great 
difficulties  in  sending  the  $400,000  in  gold  from  the 
United  States  Treasury  out  of  the  State,  and  also  in 
transferring  all  the  arms  and  munitions  of  war  from 
the  arsenal  to  Illinois.  The  Union  men  were  armed 
and  equipped,  and  finally  attacked  and  broke  up  the 
camp  of  Governor  Jackson,  where  troops  were  being 
gathered  to  aid  the  Confederacy.  Lyon  was  soon 
killed  in  the  Civil  War  which  broke  out  in  Missouri, 
but  Blair  lived  to  see  Missouri  held  in  the  Union, 
to  fight  during  the  war,  and  finally  to  run  as  a 
candidate  for  Vice-president  on  the  Seymour  ticket 
in  1868.  On  February  28,  the  Convention  met  at 
Jefferson  City  and  organized  by  electing  a  union 
man  president  by  a  vote  of  seventy-five  to  fifteen. 
The  Convention  immediately  adjourned  to  meet  at 
St.  Louis  on  March  4,  when  it  met  and  continued  in 
session  until  March  22,  and  adjourned  until  the  third 
Monday  in  the  following  December. 

But  the  Committee,  which  the  Convention  author- 
ized to  call  it  together  at  such  time  and  place  as  they 
thought  public  exigencies  required,  called  the  Con- 
vention to  meet  at  Jefferson  City,  the  capital  of  the 
State,  on  July  22,  when  the  Convention  met  and 
remained  in  session  until  the  thirty -first  of  the  month, 


'• 


MISSOURI  43 

and  again  adjourned  until  the  third  Monday  in 
December.  It  was,  however,  reconvened  in  St.  Louis 
on  October  10,  by  a  proclamation  of  the  Governor, 
and  after  a  session  of  eight  days  adjourned,  subject 
to  the  call  of  the  Governor. 

On  June  2,  1862,  the  Governor  again  called  the 
Convention  to  meet  in  Jefferson  City,  and  it  was  in 
session  until  the  fourteenth  of  the  month,  when  it  was 
adjourned  until  July  4,  1863,  previous  to  which  the 
Governor  called  it  together  at  Jefferson  City  on  June 
15,  1863,  and  it  remained  in  session  until  July  1st, 
when  it  adjourned  sine  die. 

On  June  12,  1862,  the  Convention  passed  an 
ordinance  providing  that  the  commanding  officer  of 
any  company  of  Missouri  troops  in  the  service  of  the 
United  States  or  of  the  State  of  Missouri,  members 
of  which  were  qualified  voters  under  the  laws  of  the 
State,  should  cause  an  election  to  be  held  by  the  mem- 
bers of  such  company  on  the  day  of  any  general 
election,  under  the  laws  of  the  State  "during  the 
present  war." 

The  ordinance  then  provided  for  the  appointment 
of  three  judges,  members  of  such  companies,  being 
qualified  voters,  and  two  clerks;  and  for  voting,  the 
votes  being  given  viva  voce,  or  by  tickets  handed  to 
the  judges,  and  in  each  case  to  be  "cried  in  an  audible 
voice,"  also  for  the  counting  and  return  of  the  votes 
to  the  clerk  of  the  county  court  in  which  the  voters 
were  entitled  to  vote. 

This  ordinance  required  all  persons  voting  to  take 
the  oath  of  loyalty  prescribed  by  the  convention, 
which  was  that  he  would  not  take  arms  against  the 
government  of  the  United  States,  nor  against  the 
provisional  government  of  Missouri,  nor  give  aid  or 
comfort  to  the  enemies  of  either  during  the  present 


44  VOTING  IN  THE  FIELD 

Civil  War;  and  further  provided  that  the  ordinance 
should  be  subject  to  repeal  at  any  time  by  the  General 
Assembly  of  the  State. l 

The  soldiers  voted  under  this  ordinance  during  the 
war,  but  the  record  of  the  votes  cannot  now  be  found. 

The  records  of  the  State  Department  at  Jefferson 
City  are  not  in  such  shape  as  to  give  the  soldiers'  vote 
at  the  presidential  election  in  1864.  There  is  no 
summary  of  the  vote  shown  nor  are  the  records  in 
such  shape  as  make  it  possible  to  obtain  a  summary 
of  the  soldiers'  vote  separate  from  other  votes  cast. 
Some  of  the  certifications  of  election  do  show  that 
the  vote  of  the  soldiers  was  taken  in  the  field  and 
returned  with  the  other  votes,  but  it  cannot  be  found 
separately. 

In  a  letter  to  Governor  Gamble  on  October  9, 
1863,  Lincoln,  speaking  of  the  provisional  government 
of  Missouri,  said,  "At  the  beginning  of  our  present 
troubles,  the  regular  and  installed  State  officers  of 
Missouri  taking  sides  with  the  Rebellion  were  forced 
to  give  way  to  the  provisional  State  government,  at 
the  head  of  which  you  stand,  and  which  was  placed  in 
authority,  as  I  understand,  by  the  unanimous  action 
and  acquiescence  of  the  Union  people  of  the  State.  I 
have  seen  no  occasion  to  make  a  distinction  against  the 
provisional  government  because  of  its  not  having  been 
chosen  and  inaugurated  in  the  usual  way." 

And  then  he  declined  to  instruct  General  Schofield 
to  interfere  in  the  election  because,  as  the  Governor 
wrote  him,  "A  party  has  sprung  up  in  Missouri  which 
openly  and  loudly  proclaims  the  purpose  to  overturn 
the  provisional  government  by  violence." 

April  8,  1865,  the  Convention  of  Missouri  passed 


1  Laws  of  Missouri  (January  21),  1861,  p.  177. 


MISSOURI  45 

an  ordinance  for  obtaining  the  votes  of  Missouri 
soldiers  on  the  Constitution,  which  required  the 
Governor  to  send  messengers  to  different  points  where 
there  were  citizens  of  Missouri  beyond  the  boundaries 
thereof  in  the  army  of  the  United  States,  in  order  to 
obtain  the  votes  of  such  persons  upon  the  adoption  or 
rejection  of  the  Constitution  which  had  been  adopted 
by  the  Convention,  and  provided  that  such  number  of 
copies  of  the  new  Constitution  as  the  Governor  might 
think  necessary  to  the  proper  understanding  of  the 
Constitution,  should  be  sent  to  the  Missouri  soldiers 
with  such  messengers.  In  Missouri,  the  amendment 
giving  the  power  to  vote  is  in  Article  2  of  the  Con- 
stitution of  1864.  In  the  present  Constitution 
adopted  in  1875,  there  is  no  provision  for  soldiers 
voting  in  the  field. 

It  was  reported  to  President  Lincoln  in  1864  that 
General  Rosecrans  proposed  to  prohibit  his  soldiers 
from  voting  in  Missouri,  and  the  President  wrote  him 
a  very  characteristic  letter,  saying: 

"I  have  a  report  that  you  incline  to  deny  the  soldiers 
the  right  of  attending  the  election  in  Missouri  on  the 
assumed  ground  that  they  will  get  drunk  and  make 
disturbance.  Last  year  I  sent  General  Schofield  a  letter 
of  instruction  dated  October  1,  1863,  which  I  suppose  you 
will  find  on  the  files  of  the  Department,  and  which  con- 
tains among  other  things  the  following:  'At  elections  see 
that  those  and  only  those  are  allowed  to  vote  who  are 
entitled  to  do  so  by  the  laws  of  Missouri,  including  as  of 
those  laws  the  restrictions  laid  by  the  Missouri  Convention 
upon  those  who  may  have  participated  in  the  Rebellion.' 
This  I  thought  right  and  think  right  now.  .  .  .Wherever 
the  law  allows  soldiers  to  vote  their  officers  must  also 
allow  it."  ! 


1  Complete  Works  of  Abraham  Lincoln,  Vol.  10,  p.  235. 


46  VOTING  IN  THE  FIELD 

At  the  election  in  November,  1862,  a  majority  of 
persons  favorable  to  the  emancipation  of  slaves  was 
elected,  but  they  could  do  nothing  because  the  Consti- 
tution provided  that  slaves  could  not  be  emancipated 
without  the  consent  of  the  owners,  or  the  payment 
of  value  for  the  slaves  freed.  The  Convention  at 
its  session  on  June  15,  1863,  adopted  an  ordinance 
for  gradual  emancipation,  but  this  did  not  satisfy 
the  emancipationists,  and  they  sent  a  Committee  to 
Washington  to  endeavor  to  induce  Lincoln  to  include 
Missouri  in  the  emancipation  proclamation,  which  he 
declined  to  do.1  At  the  November  election,  1864,  the 
emancipationists  carried  the  State  by  a  majority  of 
30,000,  although  the  vote  was  but  little  more  than 
half  what  it  had  been  four  years  before. 

The  Assembly  provided  for  another  Convention, 
and  delegates  were  elected  and  met  at  St.  Louis, 
January  6, 1865.  January  11  an  ordinance  was  passed 
abolishing  slavery  in  Missouri  by  practically  a 
unanimous  vote,  when  the  Governor  made  proclama- 
tion of  it.  It  is  said  that  there  were  about  114,000 
negroes  in  the  State,  worth  for  the  purposes  of  taxa- 
tion $40,000,000.2  This  is  obviously  an  error.  Slaves 
at  that  time  were  of  very  little  value.  They  had  legs 
and  they  could  use  them. 

1  History  of  Missouri,  Switzler,  pp.  822  et  sq. 
*  Missouri,  Carr,  p.  363. 


CHAPTER  VI 

IOWA 

THE  Legislature  of  Iowa  met  in  special  session 
on    September    3,   1862.     Governor    Kirkwood 
recommended  a  bill  to  allow  soldiers  to  vote  in  the 
field.     He  said :  — 

"  The  theory  of  our  Government  is  that  the  people  shall 
rule.  This  theory  can  be  carried  into  practical  effect  only 
through  the  ballot  box.  Thereby  the  people  mould  and 
direct  the  operations  of  the  Government,  and  settle  all 
questions  affecting  the  public  welfare.  The  right  of  suffrage 
is  therefore  highly  prized  by  all  good  citizens,  and  should 
be  exercised  by  them  at  all  times  and  especially  at  times 
when  questions  of  grave  importance  are  presented  for  solu- 
tion. There  never  has  been,  perhaps  there  will  never  again 
be  a  time  when  questions  so  important,  interests  so  vital  as 
those  now  demanding  action  at  the  hands  of  our  people, 
were  or  will  be  submitted  to  them.  The  very  life  of  the 
Nation  is  at  stake,  and  may  be  as  fatally  lost  at  the  ballot 
box  as  on  the  battle-field.  Under  such  circumstances  it 
is  not  only  the  right  but  the  duty  of  all  good  citizens  to  exer- 
cise the  right  of  suffrage,  and  to  see  to  it  that  the  principles 
for  the  preservation  of  which  our  people  are  so  freely  offering 
treasure  and  life,  are  not  jeopardized  or  lost  in  the  Halls  of 
Legislature,  State  or  National.  A  very  large  number  of 
the  electors  of  the  State  are  in  the  army.  We  say  but  little 
when  we  say  that  these  men  are  as  good  citizens,  as 
intelligent,  as  patriotic,  as  devoted  to  their  country,  as  those 
who  remain  at  home.  Under  existing  laws  these  citizens 
cannot  vote,  and  unless  these  laws  can  be  changed  it  may  be 
that  the  cause  they  are  perilling  life  in  the  field  to  maintain, 


48  VOTING  IN  THE  FIELD 

may  be  lost  at  home  through  supineness  or  treachery.  I 
therefore  recommend  that  the  laws  be  so  modified  that  all 
members  of  Iowa  regiments  who  would  be  entitled  to  vote 
if  at  home  on  the  day  of  election,  be  allowed  to  vote  wherever 
they  may  be  stationed  in  the  United  States,  and  that  pro- 
vision be  made  for  receiving  and  canvassing  their  votes." 

On  the  same  day  a  resolution  was  passed  by  the 
House  directing  the  committee  on  elections  to  prepare 
and  report  a  bill  at  their  earliest  convenience  to  permit 
citizen  soldiers  to  vote  in  the  field. 

On  September  4th,  a  petition  was  presented  asking 
that  soldiers  might  be  allowed  to  vote  at  general  elec- 
tions. On  the  same  day  the  Attorney  General  was 
asked  by  resolution  to  give  his  opinion  as  to  the  con- 
stitutionality of  permitting  State  volunteers  while  they 
were  beyond  the  limits  of  their  district  to  vote.  On 
September  5th,  the  Attorney  General's  opinion  was 
received,  in  which  he  held  that  the  Constitution  did 
not  fix  the  place  of  voting,  but  merely  prescribed  the 
qualification  of  electors,  and  that  therefore  the  act  to 
authorize  soldiers  to  vote  in  the  field  would  be 
constitutional. 

On  September  8th,  the  Committee  on  Elections  in 
the  House  reported  a  bill  to  amend  the  general  election 
law  "so  as  to  enable  the  qualified  electors  of  this  State 
in  military  service  to  vote  at  certain  elections,"  which 
was  discussed,  amended  and  passed.  It  then  went  to 
the  Senate  and  was  amended  and  came  back,  and  the 
House  concurred  in  the  amendments.  The  bill  was 
passed  as  amended  by  vote  of  79, 12  members  "absent 
or  not  voting."  1 

The  act  took  effect  on  September  17th,  1862,  and 
provided  that  every  white  male  citizen  of  the  United 


1   House  Journal,  Extra  Session,  1862,  pp.  7,  8,  10,  12,  19,  2q.  26,  57.  59,  61. 


IOWA  49 

States  of  the  age  of  21  years  who  had  been  a  resident 
of  Iowa  six  months,  and  of  some  county  therein  sixty 
days,  next  preceding  his  entering  the  military  service 
of  the  State  or  the  United  States,  should  be  entitled  to 
vote  whether  he  was  within  the  limits  of  the  State  or 
not  at  the  time  of  voting.  It  then  provided  that  every 
volunteer  or  soldier  in  the  military  service  of  Iowa  or 
the  United  States  should  be  entitled  to  the  benefits 
of  the  act,  if  qualified  by  residence  as  above  stated. 
Soldiers  were  entitled  by  the  act  to  vote  for  all  State 
officers  except  constables,  justices  of  the  peace  and 
county  supervisors,  and  also  to  vote  for  members  of 
Congress.  The  election  in  the  field  was  to  be  held  at 
the  same  day  as  that  provided  by  the  general  law  for 
elections  in  the  State.  The  Governor  was  charged  with 
the  duty  of  seeing  that  the  act  should  be  properly 
executed,  and  was  authorized  to  take  such  steps  as 
were  necessary  for  that  purpose. 

The  State  Census  Board  was  authorized  to  appoint 
commissioners,  one  for  each  regiment  of  Iowa  volun- 
teers, and  if  it  became  necessary  the  Governor  might 
appoint  additional  commissioners.  They  were  obliged 
to  take  an  oath  set  forth  in  the  statute,  which  required 
them  to  prevent  fraud,  deceit,  and  abuse  in  holding  the 
election,  and  not  in  any  manner  to  attempt  to  influence 
or  control  the  vote  of  any  soldier.  These  commissioners 
were  to  receive  from  the  Secretary  of  State  poll  books 
which  they  were  to  deliver  to  the  commanding  officer 
of  each  regiment. 

The  judges  of  the  election  were  to  be  chosen  by  the 
soldiers  present.  The  polls  were  to  be  opened  at  nine 
o'clock  in  the  morning  (or  sooner  if  necessary),  or  as 
soon  thereafter  as  practicable,  and  to  remain  open  at 
least  three  hours,  and  if  necessary  until  six  o'clock. 
The  judges  were  to  prepare  ballot  boxes,  and  the  votes 


50  VOTING  IN  THE  FIELD 

were  to  be  taken  in  a  very  elaborate  and  complicated 
manner  set  forth  in  the  statute.  And  finally  the  act 
provided  that  no  mere  informality  in  the  manner  of 
executing  the  provisions  of  the  act  should  invalidate 
any  election  held  under  the  same,  or  authorize  the 
rejection  of  any  return  from  it,  nor  should  any  failure 
on  the  part  of  the  commissioners  to  reach  or  visit  any 
regiment  or  company,  or  the  failure  of  any  regiment 
or  company  to  vote,  invalidate  an  election.1  The 
right  to  vote  in  the  field  was  extended  to  any  part  of 
a  company,  or  to  soldiers  in  any  hospital,  by  an  act 
passed  February  27,  1864. 2 

The  question  of  the  constitutionality  of  this  act  was 
decided  by  the  Supreme  Court,  December  10,  1863. 

At  the  October  election,  1862,  certain  State  officers 
were  elected  by  the  votes  of  soldiers  voting  in  the 
field  outside  the  State,  and  were  declared  elected  by 
the  Canvassing  Board.  A  suit  was  then  brought  in 
the  District  Court  to  deprive  them  of  their  offices, 
on  the  ground  that  the  Soldiers'  Voting  Act  was  un- 
constitutional. The  Constitution  provided  that  a 
person  who  had  resided  in  the  State  six  months  next 
preceding  an  election,  and  resided  in  the  County  "in 
which  he  claimed  the  right  to  vote"  sixty  days  be- 
fore the  election,  should  be  entitled  to  vote.  It  was 
claimed  that  this  provision  prescribed  the  place  where 
the  voter  should  vote  so  that  the  Legislature  could 
not  authorize  him  to  vote  anywhere  else.  The  Dis- 
trict Court  took  this  view  of  the  matter,  and  in  a 
somewhat  lengthy  opinion  decided  that  this  clause 
required  a  voter  to  claim  his  vote  in  the  county  of 
his  residence.  The  case  then  went  to  the  Supreme 
Court,  and  was  there  argued  at  great  length.  The 


1   Laws  of  Iowa,  1862,  p.  28.  z   Laws  of  Iowa,  1864,  p.  26. 


IOWA  51 

arguments  are  printed,  and,  with  the  opinion  of  the 
Court,  occupy  forty-seven  printed  pages  in  the  report. 
The  opinion  was  written  by  Judge  Wright.  The 
opinion  of  the  Supreme  Court  of  Wisconsin  in  Chandler 
vs.  Main,  which  had  just  been  decided,  was  cited. 
It  was  claimed  that  the  affirmative  description,  of  the 
place  of  voting  as  the  county  of  residence  of  the  voter, 
was  a  negative  to  all  other  places;  that  it  was  not  neces- 
sary to  say  he  should  not  vote  elsewhere.  Such  nega- 
tion was  implied  in  the  statement  that  he  could  vote  in 
his  county.  It  was  also  claimed  that  no  State  could 
pass  a  law  which  operated  outside  its  own  territory, 
and  that  the  penal  provisions  of  the  law  could  not 
be  enforced  for  that  reason. 

These  objections,  with  others,  were  all  answered 
in  the  opinion  of  the  Court,  and  it  was  held  that  the 
place  of  voting  was  not  so  specifically  prescribed  as 
to  prevent  the  Legislature  from  authorizing  voting 
anywhere  else.  In  conclusion  the  Court  said: 

"Looking,  therefore,  in  conclusion,  to  both  the  letter 
and  spirit  of  the  Constitution,  only  anxious  to  view  the 
question  as  one  of  the  legal  or  constitutional  right,  we 
feel  constrained  to  say  that  this  law  can  be  and  should  be 
upheld."  1 

At  the  October  elections  in  1862  the  soldiers'  vote 
in  the  field  was  14,880  for  the  administration  can- 
didates, and  4,136  for  the  opposition  candidates,  making 
a  total  soldiers'  vote  of  19,013.  The  total  vote  of  the 
State  was  116,913,  which  makes  the  total  soldiers'  vote 
about  sixteen  per  cent  of  the  total  vote  of  the  State. 

The  Congressional  vote  in  Iowa  in  1862  was: 
first  district  Republican  2,499,  Democratic  554; 
second  district  Republican  2,928,  Democratic  828; 

Morrison  vs.  Springer,  14  Iowa,  276. 


52  VOTING  IN  THE  FIELD 

third  district  Republican  2,248,  Democratic  125; 
fourth  district  Republican  3,366,  Democratic  1,136; 
fifth  district  Republican  2,609,  Democratic  672;  sixth 
district  Republican  1,214,  Democratic  212. 

At  the  State  Election  in  1863  the  soldiers'  vote  in 
the  field  was  17,435  for  the  Union  candidates  and  2,289 
for  the  Democratic  candidates,  making  a  total  soldiers' 
vote  of  19,724  or  a  little  more  than  14  per  cent  of  the 
total  vote  which  was  138,809. 

At  the  presidential  election  in  1864  the  soldiers' 
vote  in  the  field  was  17,310  for  Lincoln  and  1,921  for 
McClellan,  a  total  of  19,231  or  about  14  per  cent  of  the 
total  vote  of  the  State,  which  was  138,671. 

At  the  election  in  1865  the  soldiers'  vote  in  the 
field  was  831  for  the  Union  candidates,  and  423  for  the 
opposition,  making  a  total  soldiers'  vote  of  1,254,  or  less 
than  one  per  cent  of  the  total  vote,  which  was  125,922. 


CHAPTER  VII 

WISCONSIN 

THE  Legislature  met  in  special  session  on  Sep- 
tember 10,  1862.     In  his  message  to  the  Legis- 
lature,   the    Governor    said   with    regard    to    soldiers' 
voting : 

"Another  subject  to  which  I  desire  to  call  your  atten- 
tion at  the  present  time  is  the  enactment  of  a  law  which 
shall  give  the  soldiers  from  this  state  now  in  the  army  the 
right  to  vote  at  the  next  general  election.  After  our 
quota  shall  have  been  filled  we  shall  have  about  48,000 
men  in  the  army  of  the  Union.  Among  these,  it  is  safe 
to  presume  there  are  at  least  40,000  voters,  who  certainly 
have  as  deep,  if  not  a  deeper  interest  in  the  welfare  of  the 
state  and  Union,  and  in  the  policy  that  shall  guide  their 
counsels  in  their  representative  halls  as  those  who  have 
remained  at  home.  The  views  of  these  brave  and  patriotic 
men  should  be  heard  through  the  ballot  box,  and  should 
have  proper  weight  in  shaping  the  destiny  of  our  imperilled 
country.  Who  votes  must  bear  arms,  was  the  just  decision 
of  the  Secretary  of  War;  who  bears  arms  should  not  be 
disfranchised,  but  be  permitted  to  vote,  should  be  the 
policy  of  the  country.  There  is  nothing,  I  believe,  in  our 
Constitution  which  would  prohibit  the  enactment  of  such 
a  law.  On  the  contrary,  Section  4  of  Article  3,  provides 
that  'No  person  shall  be  deemed  to  have  lost  his  residence 
in  this  State  by  reason  of  his  absence  on  business  of  the 
United  States  or  of  this  State.'  This  at  least  indicates 
that  the  spirit  of  our  Constitution  is  against  disfranchise- 
ment  of  our  soldiers;  justice  seems  to  demand  that  they 
should  be  rewarded  in  a  different  manner  for  their  patriot- 


54  VOTING  IN  THE  FIELD 

ism  than  by  a  loss  of  the  most  important  rights  of  citizen- 
ship, especially  in  the  present  crisis,  and  it  rests  therefore 
with  you  to  say  whether  our  election  laws  shall  be  so 
amended  as  to  permit  the  taking  of  the  soldiers'  vote. 
It  is  believed  that  a  law  could,  without  much  difficulty, 
be  framed  for  this  purpose,  so  that  the  soldiers  may  vote 
for  the  most  important  public  officers,  at  least  for  State 
officers  and  for  their  respective  representatives  in  Congress 
and  the  State  Legislature. 

"  The  three  field  officers,  or  in  their  absence  the  three 
ranking  officers  of  each  regiment,  and  three  highest  com- 
missioned officers,  or  those  acting  in  their  places,  of  each 
battery  of  artillery  or  each  company  or  squadron  of  in- 
fantry or  cavalry  on  detached  service,  might  be  made  the 
inspectors  of  the  election,  with  power  to  appoint  the  proper 
person  clerk  of  the  election,  so  that  the  vote  may  be  taken 
on  the  day  fixed  by  the  Constitution. 

"I  consider  such  a  law  a  matter  of  simple  justice,  as 
well  as  of  great  importance,  and  trust  therefore  that  it 
will  meet  with  your  approbation."  1 

On  the  same  day  a  joint  resolution  was  introduced 
providing  that  so  much  of  the  Governor's  message  as 
referred  to  the  granting  to  soldiers  the  right  of  suffrage 
be  referred  to  a  select  committee  of  five  to  be  com- 
posed of  three  members  of  the  Assembly  and  two 
members  of  the  Senate,  and  that  they  be  instructed 
to  report  by  bill  at  the  earliest  possible  moment.2 
A  motion  to  suspend  the  rules  for  the  purpose  of 
considering  the  resolution  was  lost. 

On  September  11,  so  much  of  the  Governor's 
message  as  related  to  giving  soldiers  in  the  army  the 
right  to  vote  was  referred  to  a  committee  of  seven.3 

On  September  13,  a  resolution  was  adopted  by  a 
vote  of  53  to  31,  requesting  the  Attorney  General 

1  Assembly  Journal,  Extra  Session,  1862,  p.  11. 

1  Ibid.,  p.  IS.  »  Ibid.,  pp.  15,  17. 


WISCONSIN  55 

"to  furnish,  at  his  earliest  convenience,  a  written 
opinion  to  this  Legislature,  whether  under  our  present 
Constitution  it  would  be  competent  for  it  to  pass  a 
law  extending  the  right  of  suffrage  to  volunteer 
citizens  of  this  State,  in  the  service  of  the  United 
States,  enabling  them,  whilst  out  of  the  State,  to 
vote  for  State  or  county  officers,  members  of  Congress, 
or  any  of  those  officers."  1 

On  September  15,  the  Attorney  General  gave  an 
opinion  in  which  he  said: 

"A  personal  physical  presence  within  any  boundary 
lines  is  nowhere  prescribed  by  the  Constitution  as  an 
essential  portion  of  the  qualifications  of  an  elector.  And 
if  the  Legislature  now  requires  such  a  presence,  as  a  condi- 
tion precedent  to  the  exercise  of  the  elective  franchise, 
it  imposes  an  additional  qualification,  and  in  effect  declares 
that  a  person  who  possesses  every  qualification  prescribed 
by  the  Constitution,  is  not  a  qualified  elector,  although 
the  Constitution  declares  that  he  is."  .... 

"If  the  framers  of  the  Constitution  desired  to  require 
the  exercise  of  the  elective  franchise  within  the  limits  of 
the  State,  they  could  very  easily  have  so  provided,  as  was 
done  in  Illinois  and  some  other  States  of  the  Union.  The 
fact  that  they  declare  certain  existing  facts  in  the  circum- 
stances of  a  man  sufficient  to  exclude  him  from  voting, 
should  be  held  to  exclude  all  other  disabilities."  .... 

"In  conclusion  I  have  to  say  that  I  am  of  the  opinion 
that  it  is  not  only  competent  for  the  Legislature  to  pass  a 
law  extending  the  right  of  suffrage  to  our  volunteers, 
fighting  the  battles  of  the  country,  but  it  is  their  Constitu- 
tional right  to  have  such  a  law  enacted,  the  withholding 
of  which  would  be  a  palpable  violation  of  the  spirit  of  the 
fundamental  law  of  the  State. 

"I  shall  be  more  than  happy  if  my  last  official  act  as 
your  legal  adviser,  shall  be  in  the  slightest  degree  instru- 

1  Assembly  Journal,  Extra  Session,  1862,  p.  23. 


56 

mental  in  procuring  a  legislative  recognition  of  the  fact, 
that  in  becoming  soldiers  in  the  defence  of  our  imperiled 
Constitution  we  have  not  ceased  to  be  citizens."  l 

In  the  Senate  on  September  10,  that  portion 
of  the  Governor's  message  referring  to  the  right  of 
soldiers  to  vote,  was  referred  to  a  select  committee  of 
three,2  the  majority  of  whom  on  September  15  re- 
ported a  bill  "to  enable  the  militia  and  volunteers  of 
this  State  to  exercise  the  rights  of  suffrage."  3  On 
the  same  day  Mr.  Thorpe,  a  minority  of  the  com- 
mittee, filed  an  elaborate  minority  report  in  which 
he  said  that: 

"It  was  never  intended  by  the  Constitution,  in  my 
opinion,  that  any  person  should  be  permitted  to  vote  at 
elections  held  in  this  State  while  such  person  was  out  of 
the  territorial  limits  of  this  State,  beyond  the  reach  of  its 
Constitution,  laws  and  process  of  its  courts.  Where  the 
sovereign  power  of  the  State  cannot  reach  any  such  person, 
and  where,  so  far  as  acts  done,  or  deeds  committed  by 
such  persons  when  so  absent,  he  cannot  be  held  amenable 
to  our  laws,  courts  or  Constitution.  It  has  been  well 
said  that  the  people  are  the  source  of  all  power,  and  are 
sovereign  under  the  Constitution  of  the  State  and  United 
States,  and  the  laws  enacted  in  pursuance  thereof.  Now 
if  it  be  true  that  an  election  can  be  held  in  Virginia,  or 
any  other  State  for  officers  to  be  voted  for  in  this  State, 
and  that  soldiers  who  have  enlisted  in  the  service  of  the 
country  can  vote  at  such  election,  then  is  the  sovereignty 
of  Wisconsin,  and  its  source  of  power,  very  much  scattered; 
and  should  a  majority  of  the  voters  of  this  State  enlist,  a 
majority  of  the  sovereignty  and  source  of  power  would  be 
held  and  exercised  outside  of  the  territorial  limits  of  the 


1  Assembly  Journal,  Extra  Session,  1862,  p.  42. 

1  Senate  Journal,  Extra  Session,  1862,  p.  11.  3  Ibid.,  p.  20. 


WISCONSIN  57 

State.  Moreover  upon  the  same  theory,  should  this 
majority  of  sovereignty  and  source  of  power  be  held  and 
exercised  in  England  or  France,  it  would  afford  a  magnifi- 
cent illustration  of  the  transfer  of  the  sovereignty  of 
Wisconsin."  ...  "If  it  were  possible  to  confer  upon 
soldiers  the  right  to  vote  for  our  officers,  constitutionally, 
legally  and  safely,  and  it  were  simply  a  question  of  policy, 
it  would  present  a  far  different  question  from  the  one  now 
presented.  The  Legislature  are  asked,  in  my  opinion, 
to  violate  the  Constitution  to  pass  this  bill." 

But  he  also  said  that  soldiers  ought  not  to  be 
deprived  of  the  right  to  vote  if  the  Legislature  had 
the  power  constitutionally  to  confer  it.  He  said: 

"Whether  the  exercise  of  the  right  of  suffrage  by  the 
soldiers  outside  of  the  limits  of  the  State,  at  their  respec- 
tive camps  or  posts,  and  the  consequent  introduction  of 
party  strife  and  bitter  partizan  divisions  and  dissensions 
into  the  army,  will  be  conducive  to  the  efficiency  of  the 
army,  promote  the  welfare  and  happiness  of  the  soldier 
and  subserve  the  best  interests  of  the  country,  is  a  question 
of  great  magnitude,  and  one  about  the  truth  of  which, 
men  may  honestly  differ.  Without,  however,  deciding 
that  question,  we  submit  that  the  brave  and  patriotic 
soldiers  who  have  gone  forth  to  defend  the  Constitution 
and  Government  and  to  fight  manfully  the  battles  of  the 
Republic,  are  not  asking  or  demanding  any  such  privilege 
or  right,  and  in  our  opinion  it  is  simply  a  scheme  of 
leading  partizans  in  the  dominant  party  of  the  State  and 
nation  who  are  asking  and  demanding  the  passage  of  a 
law  conferring  such  privilege  upon  the  soldier,  hoping 
thereby  to  gain  some  great  advantage  to  their  party  in 
the  future,  and  hoping  to  unite  the  sword  and  purse 
together  for  the  success  of  the  great  Republican  party. 
....  It  is  no  time  now  to  commence  the  agitation  of 
partizan  politics  among  the  soldiers  of  the  armies  of  the 
Republic,  nor  for  partizans  of  the  dominant  party  to  force 


58  VOTING  IN   THE  FIELD 

upon    them,    for   fancied   political    strength,    a    thing   not 
asked  for  or  desired  by  them."  l 

On  September  15,  the  bill  was  considered  and 
debated  at  length.  An  amendment  was  proposed 
submitting  the  question  as  to  whether  the  bill  should 
become  a  law  to  the  people,  which  was  defeated  by  a 
vote  of  19  to  8.  An  amendment  was  moved  to  add 
a  section  providing  that  "all  candidates  for  votes  for 
any  office  at  any  election,  during  the  existence  of  the 
present  war,  shall  be  persons  who  have  volunteered 
in  the  militia  of  this  State,  or  of  the  United  States, 
and  assisted  in  putting  down  the  present  rebellion," 
which  was  lost  by  a  vote  of  21  to  5.  The  bill  was 
finally  passed  to  be  engrossed  by  a  vote  of  18  Re- 
publicans to  9  Democrats.  On  September  16,  the 
Senate  proceeded  with  the  consideration  of  the  bill, 
which  was  passed  by  a  vote  of  19  to  7,  and  the  bill 
went  to  the  Assembly.  It  is  worthy  of  notice  that 
Senator  Thorpe,  who  filed  the  minority  report  against 
the  bill,  did  not  vote  against  its  passage. 

In  the  Assembly  the  select  committee,  to  whom 
the  matter  had  been  referred,  reported  the  Senate 
bill  with  certain  amendments,  and  recommended  that 
it  be  passed.2  A  minority  of  three  of  the  committee 
filed  an  elaborate  minority  report  against  the  bill. 
They  said  in  part: 

"In  the  first  place,  we  are  fully  satisfied  that  there  is 
no  warrant  whatever  in  the  Constitution  of  this  State  for 
such  a  proceeding.  It  is  not  claimed  by  the  Governor, 
who  recommends  it,  nor  by  the  committee  who  favor  it, 
that  there  is  any  express  power  given  in  the  Constitution 
for  the  adoption  of  such  a  measure.  At  the  adoption  of 


1  Senate  Journal,  Extra  Session,  1862,  pp.  22,  23,  24,  25. 

2  Assembly  Journal,  Extra  Session,  1862,  pp.  29,  30,  33,  56. 


WISCONSIN  59 

the  Constitution  no  such  state  of  the  case  as  now  exists  could 
have  been  reasonably  contemplated,  and  none  such  was 
contemplated.  Every  section  of  that  instrument,  on  the 
subject  of  voting,  refers  to  the  exercise  of  the  right  of 
suffrage,  only  by  citizens  or  persons  residing  within  the 
State.  It  is  useless  to  cite  these  several  provisions,  for  all 
must  concede  that  no  other  idea  was  entertained  by  those 
who  framed  the  Constitution,  than  that  all  voting  was  to 
be  done  in  the  State.  .  .  .  Those  who  have  entered  the 
army  from  this  State,  whether  officers  or  privates,  are 
soldiers  of  the  United  States,  in  the  'military  service  of 
the  United  States,'  and  all  such  have  been  universally 
excluded  from  the  right  of  suffrage  while  so  employed. 
The  Constitution  of  this  State  was  framed  solely  as  a 
governmental  charter  for  this  State,  and  was  to  apply 
and  operate  only  on  persons  and  things  within  its  terri- 
torial limits;  nor  can  the  laws  made  in  pursuance  of  it, 
have  a  more  extended  operation.  .  .  .  The  restraints  of 
law  and  the  privileges  it  confers  on  a  citizen  flow  from  the 
same  source,  and  rest  upon  the  same  foundation,  and  if  it 
is  competent  for  the  Legislature  to  confer  upon  and  author- 
ize any  of  the  citizens  of  this  State  to  exercise,  while 
absent  from  it,  in  the  public  service  or  otherwise,  any 
privilege  or  right,  it  is  equally  competent  for  them  to  pass 
laws  regulating  and  restraining  his  conduct  in  any  other 
respects,  until  he  returns  again  within  the  limits  of  the 
State.  If  it  can  legislate  under  the  Constitution  in  this 
way  as  to  one  subject,  it  may  as  to  all.  There  is  no 
limitation  to  this  novel  and  dangerous  power  now  claimed, 
in  the  Constitution,  and  when  its  existence  is  conceded, 
there  is  no  restriction,  except  the  discretion  of  the  Legisla- 
ture, and  this  discretion  becomes  the  limit  of  their  power, 
instead  of  the  Constitution."  : 

....  "If  we  could  admit  the  constitutionality  of 
such  an  act,  we  should  regard  it  as  highly  improper  to 
enact  it  at  this  time.  No  reason  for  the  passage  of  such 


Assembly  Journal,  Extra  Session,  1862,  pp.  57,  58. 


60  VOTING  IN  THE  FIELD 

a  law  has  yet  been  assigned,  that  we  have  heard,  except 
that  our  citizens  who  have  been  called  away  to  defend 
the  country,  should  not  be  deprived  of  a  voice  in  our  civil 
affairs.  This  reason  is  assumed  to  be  both  popular  and 
patriotic.  In  our  opinion  it  is  neither  one  or  the  other, 
and  this  we  think  will  be  apparent  to  all,  when  they  reflect 
that  our  brave  and  patriotic  soldiers  have  never  asked  for 
this  privilege.  We  have  yet  seen  no  evidence  that  they 
desire  to  have  it.  But  on  the  contrary,  we  are  satisfied 
that  the  good  soldier  does  not  wish  to  be  troubled  with 
politics  and  civil  affairs  in  the  camp.  It  will  be  time 
enough  to  consider  this  question  when  they  ask  for  such  a 
law.  This  law  has  been  asked  for,  not  by  the  soldiers,  but 
by  the  politicians.  They  are  thus  seeking  to  force  upon 
the  camp  the  paltry  business  of  politics  and  election. 
The  soldier  is  seeking  to  defend  his  country  and  the 
Constitution  while  the  politicians  are  seeking,  at  the  ex- 
pense of  both,  to  embroil  him  in  politics,  thus  lessening  his 
usefulness  as  a  soldier  and  degrading  him  to  the  level  of  a 
politician." l  .  .  .  "We  cannot  believe  that  those  who 
proposed  this  scheme  are  actuated  by  any  higher  or 
different  motives  than  those  of  mere  party  success.  They 
do  not  think  more  of  the  soldier  or  of  his  rights  than  the 
soldier  himself;  and  we  are  not  even  told  by  the  message, 
which  brought  this  subject  to  our  notice,  that  the  soldiers 
have  petitioned  his  Excellency  to  ask  any  such  favor  for 
them  from  this  Legislature  or  from  the  people  of  this 
State.  We  conclude  therefore  that  it  is  not  a  tender 
regard  for  the  rights  of  the  soldier  that  induced  the 
recommendation  of  this  measure,  or  which  has  drawn  to 
it  so  many  friends.  ...  It  has  been  done  in  their  name 
and  without  their  authority,  and  as  we  believe,  against 
then'  wishes,  by  a  class  of  designing  politicians  who  care 
more  for  party  and  party  success  than  for  the  Constitu- 
tion or  the  country;  at  least  by  men  who  are  willing  to 
peril  their  safety,  all  for  the  success  of  party.  Bad  men 


Assembly  Journal,  Extra  Session,  1862,  p.  60. 


WISCONSIN  61 

have  devised  the  scheme.  .  .  .  The  bill  is,  in  our  opinion, 
under  all  the  circumstances,  the  most  dangerous  and 
mischievous  political  measure  ever  devised  or  submitted 
for  the  consideration  of  a  Legislative  body."1 

On  September  9,  the  bill  was  made  a  special  order 
for  the  20th  by  a  vote  of  48  to  45. 2  On  the  same 
day  it  was  attempted  to  fix  a  date  for  final  adjourn- 
ment, and  the  resolution  was  postponed.3  On  the 
same  day  in  the  forenoon  the  soldiers'  voting  bill 
was  taken  up  and  considered  in  the  committee  of  the 
whole,  and  the  committee  was  given  leave  to  sit 
again.4  In  the  afternoon  the  bill  was  taken  up  and 
debated  at  length.  The  committee  reported  to  the 
Assembly  that  they  had  made  progress,  and  asked 
leave  to  sit  again,  which  was  granted.5  On  the 
twenty-second  the  bill  was  reported  by  the  committee 
of  the  whole  with  amendments,  and  being  debated  at 
length,  fifteen  amendments  were  concurred  in,  and  four 
were  non-concurred  in.  An  amendment  providing 
for  referendum  to  the  people  upon  the  bill  was 
rejected  by  a  vote  of  48  to  39.  An  amendment  for 
a  referendum  in  another  form  was  then  offered  and 
rejected  by  a  vote  of  47  to  42. 6  A  referendum  in  still 
another  form  was  proposed  by  an  amendment  and 
rejected  by  the  same  vote,  —  47  to  42.  An  amend- 
ment that,  in  case  sufficient  time  was  not  given  for 
all  electors  to  vote,  no  returns  of  the  votes  should 
be  made  by  the  inspectors  was  lost  by  a  vote  of  49 
to  38. 7  Still  another  amendment  was  rejected  by  a 
vote  of  47  to  4 1.8  The  previous  question  was  then 
moved,  and  a  call  of  the  Assembly  was  ordered.  A 
motion  was  made  that  the  clerk  be  directed  to  call 


1  Assembly  Journal,  Extra  Session,  1862,  pp.  60,  61.  «  Ibid.,  pp.  80-3. 

2  Ibid.,  p.  62.  4  Ibid.,  p.  71.  7  Ibid.,  pp.  84-5. 

3  Ibid.,  pp.  68,  69.  6  Ibid.,  pp.  73,  74.  8  Ibid.,  p.  86. 


62  VOTING  IN  THE  FIELD 

the  roll  a  second  time,  which  the  speaker  declared 
out  of  order.  An  appeal  was  taken  from  his  decision, 
which  the  speaker  refused  to  entertain  as  out  of 
order,  and  finally  after  skirmishing  about  for  a  long 
time  with  various  motions,  the  demand  for  the 
previous  question  was  withdrawn,  and  a  motion  was 
made  to  strike  out  the  preamble  from  the  bill,  which 
was  lost  by  a  vote  of  46  to  35.  The  bill  was  then 
ordered  to  a  third  reading  by  a  vote  of  49  Republicans 
to  38  Democrats.1  On  September  23,  the  bill  was  read 
a  third  time,  and  upon  the  question  of  concurring  in  the 
bill  there  was  a  motion  to  adjourn  to  a  definite  time, 
which  was  lost  by  a  vote  of  48  to  44.  There  was  then 
a  motion  to  adjourn  which  was  lost  by  a  vote  of  69  to 
23.  There  was  then  a  motion  to  adjourn  until  half 
past  two  o'clock  of  the  same  day,  which  was  agreed  to 
by  a  vote  of  53  to  40. 2  In  the  afternoon  of  the  23rd, 
the  bill  was  under  consideration  and  debate,  and  a 
motion  was  made  to  adjourn  until  half  past  seven, 
which  was  lost  by  a  vote  of  49  to  42.  A  call  of 
the  Assembly  was  moved,  the  roll  was  called,  and 
finally  further  proceedings  under  the  call  were  dis- 
pensed with  by  a  vote  of  51  to  30.  There  was  then 
a  motion  for  the  previous  question,  and  a  second  call 
of  the  Assembly,  and  in  each  case  eight  Democrats 
were  absent.  The  Sergeant-at-arms  was  directed  to 
close  the  doors,  and  permit  no  member  to  leave  the 
Assembly  during  the  call.  Further  proceedings  under 
the  call  were  dispensed  with  by  a  vote  of  35  to  32. 
A  demand  for  the  previous  question  was  seconded, 
and  the  question  being  put:  "Shall  the  main  question 
be  now  put?"  it  was  so  ordered,  the  question  being: 
"Shall  the  bill  be  concurred  in?"  it  was  decided  in  the 


Assembly  Journal,  Extra  Session,  1862,  pp.  86,  87.  2  Ibid.,  p.  91. 


WISCONSIN  63 

affirmative  by  a  vote  of  52  Republicans  to  40  Demo- 
crats. There  was  then  a  motion  to  adjourn,  which 
was  lost  by  a  vote  of  55  to  36.  There  was  then  a 
motion  to  reconsider  the  vote  by  which  the  Assembly 
concurred  in  the  passage  of  the  bill,  which  motion 
was  laid  on  the  table  by  a  vote  of  52  Republicans  to 
40  Democrats.1  And  so  the  bill  was  passed  in  the 
Assembly  on  September  23. 

The  bill  was  received  in  the  Senate  on  September 

24.  Senators  asked  to  be  excused  from  voting,  and 
were  not  excused.     The  amendments  of  the  Assembly 
were  all  concurred  in  without  division,  or  by  a  vote 
of  15  to  5,  or  13  to  6,  or  10  to  8.2     On  September 

25,  the  bill  was  reported  as  having  been  delivered  to 
the  Governor  for  his  approval,3  and  on  the  same  day 
it  was  reported  by  the  acting  Governor,  James  T. 
Lewis,  as  having  been  signed. 

Party  lines  were  quite  closely  drawn  on  this  bill. 
The  vote  in  the  Senate  on  the  passage  of  the  bill 
was  19  Republicans  for  the  bill,  and  7  Democrats, 
or  so-called  "Peace  Men,"  against  it.  In  the  House 
there  were  52  Republicans  for  the  bill,  and  40  Demo- 
crats against  it. 

The  act  was  approved  and  took  effect  on  September 
25, 1862.  It  provided  that  all  qualified  electors  who  were 
in  the  actual  military  service  of  the  United  States,  or 
of  the  State,  either  in  the  State  or  without  the  State, 
should  be  entitled  to  exercise  the  right  of  suffrage  at  any 
"general  election"  to  be  held  pursuant  to  the  law  of 
the  State  at  the  several  posts,  camps,  or  places  where 
they  might  be  under  a  separate  command  on  election 
days  as  fully  as  though  they  voted  in  the  place  where 
the  election  was  held,  provided  that  no  person  in 

1  Assembly  Journal,  Extra  Session,  1862,  p.  94. 

2  Senate  Journal,  Extra  Session,  1862,  pp.  62,  63.  *  Ibid.,  p.  66. 


64  VOTING  IN  THE  FIELD 

the  regular  army  of  the  United  States  should  be  so 
entitled  to  vote. 

The  vote  was  to  be  taken  by  the  three  highest 
officers  of  each  company,  who  should  appoint  two 
soldiers  to  act  as  clerks.  The  officers,  who  acted 
as  inspectors,  and  the  clerks  took  and  subscribed 
an  oath  to  endeavor  to  prevent  all  fraud,  deceit 
or  abuse.  It  was  made  the  duty  of  the  Secre- 
tary of  State  to  prepare  and  transmit  proper  blanks 
to  the  commanding  officer  of  each  company,  and  of 
the  State  Board  of  canvassers  to  canvass  the  votes 
taken,  certified  and  returned  under  the  act. 

By  an  act  passed  March  17,  1863,  this  act  was 
amended  by  extending  its  provisions  so  as  to  cover 
the  election  of  State  judges.1 

In  1865  the  Soldiers'  Voting  Act  was  amended  by 
extending  its  benefits  so  that  all  soldiers  in  hospitals 
or  on  detached  duty  could  vote.2 

The  Act  appears  to  have  been  in  force  in  1869,  for 
Sections  15  and  16  of  the  Act  of  1862  were  repealed 
in  that  year.3 

In  January,  1863,  the  validity  of  this  Act  was 
brought  in  question  in  State  Ex  Rel.  Chandler,  vs. 
Main,  16  Wisconsin  422.  The  relator  received  a  ma- 
jority of  all  the  votes  cast  for  sheriff,  a  county  officer, 
if  the  votes  of  soldiers  cast  in  the  field  were  not 
counted,  and  if  they  were  counted,  the  respondent  re- 
ceived the  majority,  so  that  the  question  was  whether 
the  law  for  soldiers'  voting  was  constitutional.  It  was 
fully  argued  and  very  carefully  considered  and  the 
court  held  that  the  law  was  valid;  it  said  that  the 
principle  that  any  State  could  authorize  the  doing 

1  Laws  of  Wisconsin,  1862-3,  p.  77,  Ch.  59. 

2  Laws  of  Wisconsin,  1865,  Ch.  88. 

3  Laws  of  Wisconsin,  1869,  Ch.  49. 


WISCONSIN  65 

of  acts  outside  its  borders,  was  not  new.  It  was 
claimed  that  although  there  was  no  prohibition  of 
such  a  law  in  the  Constitution,  an  implied  prohibi- 
tion was  derived  from  the  nature  and  scope  of  the 
Constitution  itself,  and  the  general  principle  that  the 
Constitution  and  laws  of  a  country  could  have  no 
force  beyond  its  territorial  limits.  The  Court  answered 
this  objection  by  saying  that  every  State  might,  in 
the  regulation  of  its  own  internal  affairs,  authorize 
certain  things  to  be  done  outside  of  its  limits,  and 
prescribe  what  effect  they  should  have  within  its 
limits,  as  for  instance,  the  manner  in  which  real 
estate  should  be  transferred,  the  taking  of  deposi- 
tions and  proof  for  use  in  its  courts,  and  other  acts 
of  this  character.  The  Court  said,  The  act  author- 
ized to  be  done  is  the  "expression  of  the  will  of  an 
elector  of  this  State  in  regard  to  an  office  to  be  held 
and  exercised  here."  There  can  be  no  doubt  that 
the  act  is  within  the  scope  of  legitimate  legislation 
by  the  State  unless  it  is  prohibited  by  the  Constitu- 
tion, and  we  do  not  find  in  the  Constitution  any 
such  express  prohibition  as  will  authorize  us  to  say 
that  the  Legislature  cannot  provide  that  the  voter 
can  vote  out  of  his  own  district  or  out  of  the  State. 
In  conclusion  the  Court  said: 

"I  have  examined  only  as  to  the  power  of  the  legisla- 
ture to  pass  it.  If  the  power  exists,  the  policy  and  expe- 
diency of  it  are  for  the  legislature  and  not  the  courts 
to  determine.  Upon  this  question,  whatever  arguments 
may  be  urged  against  the  policy  of  such  a  law,  there 
are  also  certainly  very  strong  considerations  in  its  favor, 
as  adapted  to  the  present  extraordinary  condition  of 
affairs,  when  more  than  forty  thousand  of  the  citizens  of 
this  state  have  left  it  in  the  service  of  their  country.  But, 
whatever  else  may  be  said  upon  the  subject,  this  at  least 


66  VOTING  IN  THE  FIELD 

is  true,  that  history  has  furnished  no  better  example  illus- 
trating the  capacity  of  the  people  for  self  government, 
than  that  furnished  under  this  law,  of  the  citizen  soldiers 
pausing  amid  the  horrors  of  war  to  discharge  their  duties 
as  the  primary  legislators  of  the  republic,  and  to  guard 
by  an  intelligent  use  of  their  ballots,  to  be  forwarded  to 
their  homes,  the  welfare  of  their  country,  and  those  prin- 
ciples of  civil  liberty  for  which  they  are  ready  at  any 
moment  to  lay  down  their  lives  upon  the  field  of  battle." 

The  soldiers'  vote  in  1862  for  the  administration 
candidates  was  8373,  for  the  opposition  candidates 
2046,  making  a  total  soldiers'  vote  of  10,419.  The 
total  vote  of  the  State  was  132,871,  making  the 
total  soldiers'  vote  about  eight  per  cent  of  the  total 
vote  of  the  State.1 

In  1864  the  vote  of  soldiers  in  the  field  was  11,372 
for  Lincoln  and  2,458  for  McClellan,  total  13,830  or 
about  eight  per  cent  of  the  total  vote  of  the  State 
which  was  149,342. 

There  was  an  election  for  Chief  Justice  of  the  Su- 
preme Court  in  April,  1863,  at  which  the  soldiers' 
vote  was  9,440  for  the  Union  candidate,  Dixon,  and 
1,747  for  Cothren,  the  Democratic  candidate,  making 
the  Republican  majority  of  the  soldiers'  vote  7,693, 
Dixon's  majority  of  the  total  vote,  including  the 
soldiers'  vote  was  only  2,800,  so  that  he  was  elected 
by  the  soldiers'  vote. 

It  is  worthy  of  notice  that  Dixon  was  a  member  of 
the  Court  in  January,  1863,  when  the  Soldiers'  Voting 
Act  was  sustained,  though  he  did  not  write  the 
opinion. 

The  soldiers'  voting  acts  were  repealed  by  Section 
1,  Chapter  188  of  the  revision  of  1871.  See  Preface 
to  "Statues  and  Index"  at  the  end  of  Volume  2. 

1  Greeley's  American  Conflict,  Vol.  2,  p.  254. 


CHAPTER  VIII 

MINNESOTA 

MINNESOTA  was  the  most  far  off  of  the  north- 
ern States,  except  Oregon.  It  had  a  popula- 
tion in  1860  of  171,793  and  229  free  colored.  Its 
quota  of  three  months'  troops  was  780,  and  it  fur- 
nished 930.  It  furnished  also  6,937  three  years'  men 
under  the  first  call  for  troops,  although  its  quota  was 
only  4,899.* 

It  was  harassed  by  the  Indians;  it  had  little 
money  for  defence  and  its  people  were  intensely 
loyal.  Governor  Ramsey  called  the  Legislature  in 
special  session  on  September  9,  1862.  In  his  mes- 
sage delivered  on  that  day  he  said  with  regard  to 
soldiers'  voting  in  the  field: 

"I  would  particularly  urge  upon  your  attention  the 
absolute  necessity  which  exists  that  you  should  take  some 
action  by  which  such  of  our  citizens  as  have  now  volun- 
teered, or  may  hereafter  volunteer,  in  the  army  of  the 
United  States,  shall  continue  to  exercise  the  right  of  suf- 
frage. ...  If  the  present  condition  of  our  laws  should 
remain  unchanged,  and  the  volunteer  soldiers  remain  dis- 
franchised, every  addition  to  their  ranks  will  increase  the 
number  of  patriotic  men  in  the  field,  and  correspondingly 
increase  the  political  power  of  those  who  remain  at  home. 
...  It  may  consequently  happen  that,  unless  a  proper 
legislative  action  is  taken  to  prevent  it,  a  day  will  come 
when  our  vast  force  of  volunteers  in  the  field  will  represent 
one  set  of  principles,  while  our  governments,  State  and 


1  Phisterer,  Statistical  Record  of  the  Armies  of  the  U.  S.,  pp.  8-4. 


68  VOTING  IN  THE  FIELD 

National,  will  be  guided  by  an  entirely  different  set.  In 
other  words,  the  labors  and  the  sufferings  of  the  patriotic 
army  may  be  frustrated,  embarrassed  and  brought  to  naught 
by  the  machinations  of  home  governments  wielded  by  timid 
or  disloyal  spirits.  ...  I  trust  the  subject  will  meet  with 
your  earliest  attention."  l 

On  September  10,  a  bill  was  introduced  "to  enable 
citizens  of  this  State  who  are  or  may  be  engaged  in 
the  military  or  naval  service  of  the  United  States,  to 
vote  in  the  election  districts  where  they  reside  at 
the  general  election  to  be  held  in  the  month  of 
October,  1862,  and  at  all  subsequent  general  elec- 
tions during  the  continuance  of  the  present  war," 
which  was  referred  to  the  Committee  on  Elections. 
On  September  12,  the  Committee  reported  the  bill 
with  amendments.  On  September  15,  the  bill  was 
under  discussion  in  the  Senate  as  a  Committee  of 
the  Whole.2 

There  appears  to  have  been  difficulty  with  regard 
to  the  provisions  of  the  bill,  for  on  September  15  the 
Committee  of  the  Whole  reported  the  bill  with  amend- 
ments. On  the  sixteenth,  the  bill  was  re-committed 
to  the  Committee  on  Elections,  and  two  additional 
members  appointed  on  that  Committee.  On  Septem- 
ber 17,  the  Committee  reported  the  bill  back,  with 
amendments,  which  were  adopted  by  the  Senate. 
Sundry  other  proposed  amendments  were  rejected  and 
the  bill  was  ordered  to  be  engrossed  for  a  third  read- 
ing. A  resolution  was  then  offered  "that  the  bill 
now  under  consideration  be  referred  to  the  Attorney 
General  for  the  purpose  of  obtaining  his  opinion  as 
to  constitutionality  of  this  bill."  The  resolution  was 
defeated  by  a  vote  of  six  in  its  favor  and  twelve 

1  Executive  Documents  of  Minnesota,  1862,  pp.  13-14. 

2  Senate  Journal,  Special  Session,  1862,  pp.  11,  16,  28. 


MINNESOTA  69 

against  it.  On  September  18,  the  same  senator  who 
had  moved  that  the  opinion  of  the  Attorney  General 
be  taken  upon  the  constitutionality  of  the  bill,  offered 
a  resolution:  "That  the  bill  be  referred  to  the  judges 
of  the  Supreme  Court  for  the  purpose  of  obtaining 
their  opinion  of  its  constitutionality";  and  this  reso- 
lution was  defeated  by  a  vote  of  three  in  its  favor  and 
sixteen  against  it.  On  the  same  day  the  bill  was 
passed  by  a  vote  of  thirteen  yeas  to  six  nays,  one 
member  being  excused  from  voting,  and  sent  to  the 
House.1 

In  the  House,  on  September  19,  the  bill  was  re- 
ferred to  the  Committee  on  the  Judiciary,  which  on 
the  same  day  reported  it  back,  and  it  was  referred  to 
the  Committee  of  the  Whole  House.  On  the  twen- 
tieth, the  Committee  of  the  Whole  considered  the  bill 
at  length  and  reported  it  back  to  the  House  with 
amendments  and  a  recommendation  that  they  be  re- 
ferred to  a  committee  of  three  with  instructions  to 
complete  the  bill  and  report  it  to  the  House  at  as 
early  a  day  as  possible.  On  September  22,  the  spe- 
cial committee  to  whom  the  bill  had  been  referred, 
reported  it  with  amendments  which  were  separately 
considered.  Other  amendments  w^ere  also  proposed 
from  the  House,  wThich  were  considered,  and  finally 
some  of  the  amendments  were  adopted  and  some 
rejected,  and  the  bill  as  amended  was  adopted.  The 
rules  were  suspended  by  a  vote  of  thirty  to  one,  and 
the  bill  was  laid  upon  the  table.  On  September  23, 
the  bill  was  taken  up  and  it  was  moved  to  commit  it 
to  a  special  committee  with  instructions,  which  mo- 
tion was  defeated,  fifteen  to  sixteen.  Another  motion 
was  made  to  commit  the  bill  to  a  special  committee 


1  Senate  Journal,  Special  Session,  1862,  pp.  31,  32,  43,  44,  46,  49. 


70  VOTING  IN  THE  FIELD 

of  one  with  instruction  to  report  that  afternoon,  "an 
amendment  so  as  to  provide  fully  for  the  registry  of 
absent  qualified  electors,"  which  motion  was  carried, 
seventeen  to  fifteen.1 

In  the  afternoon,  the  committee  reported  the  bill 
with  an  amendment,  which  was  adopted.  It  was  then 
moved  to  commit  the  bill  to  a  committee  of  one  with 
instructions  to  report  a  substitute  for  it  which  should 
provide  for  the  postponement  of  the  election  for  repre- 
sentatives in  Congress  to  the  general  election  in  the 
year  1863,  which  was  defeated  by  a  vote  of  eight  to 
twenty-eight.  The  bill  was  then  passed  by  a  vote 
of  thirty  in  its  favor  and  six  against  it.2 

The  bill  then  went  to  the  Senate,  and  the  Senate 
concurred  in  the  House  amendments  by  a  unanimous 
vote.  It  was  approved  by  the  Governor  September 
27,  1862,  and  took  effect  upon  its  passage.3  It  was 
drawn  upon  the  theory  that  though  the  soldier's  vote 
was  deposited  in  the  field,  it  was  really  cast  in  the 
election  district  where  he  resided  and  was  registered. 
It  provided  that  all  persons  regularly  enlisted  into 
the  military  or  naval  service  of  the  United  States, 
or  who  had  volunteered  into  the  military  service  of 
Minnesota,  and  who  had  been  for  ten  days  next  pre- 
ceding the  time  when  they  were  mustered  into  the 
service  residents  of  any  election  district  in  the  State 
and  entitled  to  vote  therein,  or  who  were  actually  resi- 
dents at  the  time  of  enlistment  and  had  since  arrived 
at  the  age  of  twenty-one  years,  and  who  were  or  might 
be  thereafter  registered  as  voters,  should  have  the  right 
to  vote  at  the  next  annual  election,  and  at  all  subse- 
quent elections  "during  the  continuance  of  the  pres- 


1  House  Journal,  Special  Session,  1862,  pp.  59,  64,  65,  79,  84,  85. 

2  Ibid.,  pp.  86,  87,  88,  89. 

1  Senate  Journal,  Special  Session,  1862,  pp.  78,  83. 


MINNESOTA  71 

ent  war  in  the  following  manner."  The  manner  of 
voting  was  by  depositing  the  ballot  in  an  envelope 
and  sealing  the  same  with  "sealing  wax,"  and  direct- 
ing the  envelope  to  the  judges  of  the  election  district 
where  the  soldier  resided  at  the  time  of  his  entering 
the  service.  It  was  provided  that  the  soldier  should 
endorse  on  the  envelope  his  name,  with  the  designa- 
tion of  the  company,  regiment,  or  service  to  which  he 
was  attached.  He  should  then  take  the  envelope  thus 
sealed,  endorsed  and  directed  before  a  commissioner 
appointed  under  the  act,  and  acknowledge  the  same 
to  be  his  free  and  voluntary  vote. 

The  Governor  was  required  to  appoint,  with  the 
consent  of  the  Senate,  two  commissioners  for  the 
Eastern,  and  Middle  States,  and  for  such  of  the  South- 
ern States  as  were  east  of  the  western  line  of  the 
States  of  Virginia  and  North  and  South  Carolina, 
two  for  the  Western  States,  and  the  remainder  of 
the  Southern  States,  and  two  for  Minnesota,  said 
commissioners  to  be  selected  equally  from  the  two 
recognized  political  parties  of  the  State.  Each  of 
these  commissioners  was  to  take  and  subscribe  an 
oath  that  he  would  not,  directly  or  indirectly,  at- 
tempt to  influence  the  vote  of  any  soldier  entitled 
to  vote  under  the  provisions  of  the  act.  They  were 
then  to  visit  the  several  regiments,  battalions  and 
service  within  the  jurisdiction  for  which  they  might 
have  been  appointed  to  conduct  elections.  One  of 
these  commissioners  to  whom  an  envelope  to  con- 
tain a  soldier's  vote  was  tendered  was  required  to 
take  the  oath  of  the  soldier  to  his  qualifications  as 
provided  in  the  act,  and  then  to  certify  on  the  en- 
velope that  the  soldier  had  taken  the  oath  in  the 
manner  prescribed  in  the  act.  After  this  was  done 
the  soldier  was  entitled  to  vote  and  deposited  his 


72  VOTING  IN  THE  FIELD 

vote  in  the  envelope,  and  the  commissioners  were 
to  send  the  same  to  the  judges  of  the  election  of  the 
district  where  the  voter  resided,  and  they  upon  find- 
ing the  name  of  the  person  endorsed  on  the  envelope 
on  the  registered  list  of  voters,  deposited  the  ballot 
contained  in  the  envelope  in  the  ballot  box  and  can- 
vassed the  vote  with  other  votes.  The  act  made  it 
the  duty  of  the  judges  of  elections  in  the  State  to 
put  upon  the  registered  list  of  voters  the  names  of 
all  persons  qualified  to  vote,  although  they  were  ab- 
sent at  the  time  in  the  service  of  the  United  States 
or  of  the  State  of  Minnesota,  and  there  were  sundry 
other  provisions  to  secure  a  correct  registration.1 

It  is  said  that  the  records  of  the  soldiers'  vote  in 
the  field  under  this  act  cannot  now  be  obtained. 
They  are  said  to  have  been  destroyed  when  the  Cap- 
itol of  Minnesota  was  burned,  on  March,  1,  1881. 
Greeley  says  that  "the  vote  of  the  Minnesota  soldiers 
in  1864  did  not  reach  the  State  canvassers  in  season 
to  be  counted  and  was  probably  destroyed  unopened."2 

However  this  may  be  I  think  that  as  under  the 
Act  the  soldiers  were  allowed  to  vote  "in  the  Elec- 
tion districts  where  they  resided"  and  their  votes  were 
required  to  be  canvassed  and  counted  with  the  other 
votes,  there  was  no  record  of  soldiers'  votes  separate 
from  the  record  of  all  the  votes  cast. 

The  soldiers'  voting  act  of  1862  was  repealed  in 
1866  by  the  revision  of  that  year.3 


1  Laws  of  Minnesota,  Extra  Session,  1862,  p.  13. 

2  Greeley's  American  Conflict,  Vol.  2,  p.  672. 

3  Statutes  of  Minnesota.      Revision,  1866. 


CHAPTER  IX 

OHIO 

IN  January,  1863,  petitions  were  presented  to  the 
Ohio  Legislature  from  nearly  every  county  in  the 
State  for  the  passage  of  a  law  to  permit  citizens  of  Ohio 
in  the  military  service  of  the  United  States  to  enjoy 
the  elective  franchise,  and  they  were  referred  to  a 
select  committee  on  soldiers'  voting.  So  far  as  the 
record  discloses  there  were  no  remonstrances  against 
these  petitions.  The  bill  was  introduced  in  the 
Senate,  and  was  numbered  Senate  Bill  No.  143.  On 
January  28,  the  select  committee  reported  an  amended 
bill  as  Senate  Bill  No.  143,  which  was  printed.  The 
bill  was  amended  in  the  House  on  February  20  and 
24,  on  which  last  day  it  was  passed  by  a  vote  of  79 
ayes  to  two  nays.  The  bill  then  went  to  the  Senate, 
from  which  it  came  back  to  the  House  with  amend- 
ments, and  a  committee  of  conference  was  appointed 
on  April  9.  This  committee  reported  an  agreed  bill, 
but  the  Senate  refused  to  agree  to  the  report.  Where- 
upon the  House  requested  another  committee  of  con- 
ference, which  was  appointed.  This  committee  failed 
to  reconcile  the  differences,  and  the  House  on  April  10 
asked  for  another  committee  of  conference,  which  was 
appointed.  This  committee  reported  on  April  11,  that 
they  had  been  unable  to  agree  and  requested  to  be 
discharged,  which  was  done.  The  House  then  re- 
quested another  committee  of  conference,  which  was 
appointed.  This  committee  reported  an  agreement 
and  amendment,  which  was  agreed  to  by  a  vote  of 


74  VOTING  IN  THE  FIELD 

51  to  27.  To  this  report  the  Senate  also  agreed  on 
April  13,  1863.1 

This  act,  provided  that  any  qualified  voter  who 
was  in  the  actual  military  service  and  absent  from  the 
township  or  ward  of  his  residence,  should  vote  in 
county,  state,  congressional  or  presidential  elections  in 
the  manner  provided  in  the  act.  The  polls  were  to  be 
opened  in  each  company  at  the  quarters  of  the  captain, 
or  other  commanding  officer,  from  ten  o'clock  A.M.  until 
six  o'clock  P.M.  on  the  day  of  election,  and  all  electors 
belonging  to  such  company  who  were  within  two  miles 
of  such  quarters  on  the  day  of  such  election  should 
vote  at  such  polls  and  at  no  other  place.  At  the 
opening  of  the  polls  the  soldiers  present  were  re- 
quired to  elect  viva  voce,  three  persons  as  judges  of 
elections,  and  the  judges  then  were  to  appoint  two 
persons  present  to  act  as  clerks  of  the  election.  The 
judges  and  clerks  were  to  take  and  subscribe  an  oath 
faithfully  to  execute  the  act.  The  further  provisions 
were  for  poll  books,  for  manner  of  voting,  canvassing, 
and  returning  and  counting  votes.2 

At  the  October  election,  1863,  the  validity  of  this 
act  was  brought  in  question.  There  were  two  can- 
didates for  the  office  of  Probate  Judge.  The  canvass- 
ing board  included  the  votes  cast  by  soldiers  out  of 
the  State  in  its  canvass,  and  declared  the  candidate 
who  received  the  majority  upon  that  canvass  to  be 
elected.  The  defeated  candidate  brought  the  case 
before  the  Court  of  Common  Pleas,  claiming  that 
votes  cast  by  soldiers  out  of  the  State  could  not  be 
counted,  and  that  therefore  he  was  elected.  That 
Court  held  the  act  of  1863  unconstitutional,  so  far 


1  House  Journal,  1863,  pp.  80,  81,  207,  229,  526,  537,  538,  542,  552,  558,  561, 
584;  Senate  Journal,  pp.  62,  74,  75,  171,  337. 

2  General  Laws,  Vol.  60,  1863,  p.  80. 


OHIO  75 

as  it  provided  for  voting  outside  of  the  State,  and 
that  "all  votes  polled  under  the  provisions  of 
the  act  outside  of  the  State  of  Ohio  were  illegal, 
void  and  to  be  held  for  naught."  It  excluded  from 
the  canvass  all  the  votes  cast  out  of  the  State  and 
declared  the  defeated  candidate  elected.  Thereupon 
the  other  candidate  took  the  case  to  the  Supreme 
Court  upon  exceptions,  and  it  was  there  argued  and 
decided  at  the  December  term,  1863. 1 

The  case  was  deemed  very  important,  and  all  the 
arguments  as  well  as  the  opinions  are  reported.  It 
occupies  162  printed  pages  of  the  report.  The  opinion 
was  written  by  Scott,  J.,  and  was  concurred  in  by 
Brinkerhoff,  C.  J.,  and  Wilder  and  White,  JJ.  It 
was  claimed  that  there  was  a  want  of  power  in  the 
Legislature  to  give  an  extra-territorial  effect  to  any 
of  its  statutes.  The  argument  in  brief  was  "that  the 
people  of  the  State  in  their  collective  capacity  never 
possessed  such  a  power,  and  therefore  could  not  have 
delegated  it  to  the  Legislature";  and  it  might  well 
be  said,  by  the  same  course  of  reasoning,  could  not 
have  delegated  it  by  a  Constitution.  The  Court 
said  that  the  purpose  of  the  law  was  simply  to  declare 
in  what  manner  citizens  of  Ohio  might  cast  their 
ballots  out  of  the  State,  and  the  effect  which  should 
be  given  within  the  State  to  ballots  thus  cast  out  of  the 
State.  And  finally  they  held  that  such  a  law  was  not 
extra-territorial  in  its  operation,  and  "  was  clearly  within 
the  just  sphere  of  the  legislative  power  of  the  State." 

Ranney,  J.  dissented  in  an  opinion  in  which  he 
held  that  "elections  held  and  votes  given  beyond  the 
State  are  held  and  given  without  the  authority  of 
the  Constitution  and  laws  of  the  State,  from  which 


1  Lehman  v.  McBride,  15  Ohio  State  Reports,  594. 


76  VOTING  IN  THE  FIELD 

alone  they  can  derive  any  efficiency,  and  are  null  and 
void."  In  conclusion  he  said,  "I  can  conceive  of 
nothing  more  nearly  approaching  an  absurdity  than 
that  all  the  people  limit  their  powers  and  faculties 
to  the  State  they  inhabit,  expressly  requiring  a  legis- 
lative body  with  powers  equally  limited,  to  regulate 
and  govern  by  law  elections  held  outside  of  the 
territorial  jurisdiction  of  either."  The  Supreme  Court 
declared  the  candidate  elected  who  had  received  a 
majority  of  the  votes  upon  the  canvass,  including  the 
votes  cast  out  of  the  State. 

The  original  Ohio  act,  it  will  be  observed,  did  not 
declare  expressly  that  voters  in  actual  military  service 
beyond  the  limits  of  the  State  should  be  entitled  to 
vote  under  it,  but  the  canvassing  board,  the  Court 
of  Common  Pleas,  and  the  Supreme  Court  construed 
it  to  mean  that.  However,  by  an  act  passed  March 
30,  1864,  the  act  of  1863  was  repealed,  and  a  substi- 
tute was  enacted  which  provided  that  soldiers  might 
vote  whether  "within  or  beyond  the  limits  of  the 
State,"  and  also  extended  the  benefits  of  the  act 
to  teamsters,  clerks  and  other  people  in  the  employ- 
ment of  the  State,  who  could  not  be  strictly  regarded 
as  soldiers.  It  also  limited  its  operation  to  the  period 
of  the  then  existing  war,  the  language  of  the  act 
being  that,  "Whenever  during  the  existence  of  the 
present  rebellion,  any  qualified  voters  of  this  State 
shall  be  in  actual  service".  .  .  .  * 

Neither  the  act  of  1863,  nor  the  act  of  1864, 
authorized  voting  in  the  field  in  municipal  elections, 
and  on  March  23,  1864,  an  act  was  passed  which 
prescribed  the  mode  of  holding  an  election  for  officers 
of  cities  in  camps  and  posts  out  of  the  State.2 


1  General  Laws,  Vol.  61,  1864,  p.  88.  *  Ibid.,  p.  49. 


OHIO  77 

There  was  a  contest  in  1864,  over  the  seat  of  one 
of  the  members  of  the  Legislature,  and  it  appears 
by  the  report  of  the  Committee  on  Privileges  and 
Elections  that  it  was  decided  in  favor  of  the  can- 
didate who  had  the  smallest  number  of  votes  cast 
within  the  county,  but  who  had  272  votes  against  23 
votes  by  soldiers  in  the  field,  and  therefore  received 
a  majority  of  all  the  votes  cast.  In  this  case  the 
claim  was  made  by  the  defeated  candidate  that  the 
soldiers'  vote  should  not  be  counted  because  none  of 
the  votes  were  cast  in  the  county,  and  most  of  them 
purported  to  be  cast  in  other  States  than  Ohio.  On 
this  point  the  Committee  said  that  they  were  not 
"able  to  adopt  the  monstrous  doctrine  involved  in 
the  reasons  assigned,  —  that  the  loyal  citizen  of  Ohio 
who  goeth  forth  to  do  battle  for  his  and  our  common 
country  in  her  hour  of  peril,  and  is  called  in  the 
discharge  of  his  duty  beyond  the  limits  of  his  county 
and  state,  thereby  becomes  disfranchised  of  this 
highest  attribute  and  badge  of  citizenship;  but,  on 
the  contrary,  believing  that  the  law-making  power 
of  the  legislative  power  of  the  State  Government 
under  the  Constitution  is  ample  for  the  passage  of 
the  act,  under  the  provisions  of  which  these  votes  were 
cast,  we  have  found  it  our  duty  to  count  them  in  the 
contest."  * 

In  another  contested  election  case,  the  soldiers' 
vote  was  counted,  2,000  being  for  the  person  who  was 
seated,  and  300  for  the  person  who  was  not  seated.2 

At  the  October  election  of  1863,  the  entire  vote 
of  the  State  was  476,223.  The  soldiers'  vote  was 
43,755,  or  about  9  per  cent  of  the  entire  vote.  At 
the  October  election  of  1864  the  entire  vote  was 


1  House  Journal,  1864,  Appendix,  p.  70.  *  Ibid.,  p.  77. 


78  VOTING  IN  THE  FIELD 

419,649  of  which  the  soldiers'  vote  was  37,350,  or 
about  9  per  cent  of  the  entire  vote.  At  the  presi- 
dential election  in  1864  the  entire  vote  was  470,722 
of  which  the  soldiers'  vote  was  50,903  or  about  12 
per  cent  of  the  entire  vote.  At  the  State  election 
of  1863,  Vallandigham  the  Democratic  candidate 
received  2,288  soldiers'  votes  in  the  field,  while 
Brough  the  Republican  candidate  received  41,467, 
being  a  majority  of  39,119.  At  the  October  election 
in  1864  for  Secretary  of  State,  the  democratic  can- 
didate received  4,599  votes  of  soldiers  in  the  field, 
while  the  Republican  candidate  received  32,751,  being 
a  majority  of  28,152.  At  the  presidential  election 
in  1864,  McClellan  received  9,757  votes  of  soldiers 
in  the  field,  and  Lincoln  received  41,146,  being  a 
majority  of  31,389. 

In  1864  nineteen  Congressmen  were  elected  from 
Ohio.     The  soldiers'  votes  were  as  follows: 

In  the  first  district  the  Republican  received  865  sol- 
diers' votes  and  the  Democrat  163;  in  the  second  dis- 
trict the  Republican  received  788  and  the  Democrat 
135;  in  the  third  district,  the  Republican  received  1358 
and  the  Democrat  92;  in  the  fourth  district,  the  Re- 
publican received  1416  and  the  Democrat  144;  in  the 
fifth  district  the  Republican  received  1820  and  the 
Democrat  334;  in  the  sixth  district  the  Republican 
received  457  and  the  Democrat  48;  in  the  seventh  dis- 
trict the  Republican  received  1582  and  the  Democrat 
292;  in  the  eighth  district  the  Republican  received  1488 
and  the  Democrat  217;  in  the  ninth  district  the  Republi- 
can received  1849  and  the  Democrat  234;  in  the  tenth 
district  the  Republican  received  2165  and  the  Demo- 
crat 419;  in  the  eleventh  district  the  Republican  re- 
"ceived  2511  and  the  Democrat  462;  in  the  twelfth 


OHIO  79 

district  the  Republican  received  2021  and  the  Demo- 
crat 305;  in  the  thirteenth  district  the  Republican 
received  1634  and  the  Democrat  187;  in  the  fourteenth 
district  the  Republican  received  1478  and  the  Demo- 
crat 226;  in  the  fifteenth  district  the  Republican  re- 
ceived 2029  and  the  Democrat  170;  in  the  sixteenth 
district  the  Republican  received  1797  and  the  Demo- 
crat 247;  in  the  seventeenth  district  the  Republican 
received  1566  and  the  Democrat  28;  in  the  eighteenth 
district  the  Republican  received  1623  and  the  Demo- 
crat 29;  and  in  the  nineteenth  district  the  Republican 
received  1932  and  the  Democrat  9.  Showing  a  total 
of  30,379  Republican,  and  3,741  Democratic,  being  a 
total  vote  of  34,120  or  16,783  less  than  the  total  vote 
for  President. 


CHAPTER  X 

VERMONT 

AT  the  October  Session  of  the  Vermont  Legis- 
lature in  1863  the  Governor  made  the  follow- 
ing recommendation:— 

"I  would  earnestly  recommend  the  passage  of  a  law 
securing  to  the  soldiers  who  are  now  already,  or  who  may 
hereafter  be  called  into  the  service  of  the  United  States, 
from  this  State,  the  right  to  exercise  their  elective  fran- 
chise, as  guaranteed  and  secured  to  the  freemen  of  this 
State  by  its  Constitution;  and  I  would  respectfully  urge 
this  measure  upon  your  consideration,  as  an  act  of  justice 
to  the  brave  sons  and  freemen  of  Vermont,  who  are  so 
nobly  doing  battle  in  the  cause  of  the  country,  and  as  a 
fitting  testimonial  of  the  appreciation  in  which  those 
services  are  held  by  the  people  of  the  State. 

"Moved  by  an  earnest  patriotism,  and  in  the  holy 
ardor  of  an  undying  love  for  the  great  blessings  of  civil 
liberty,  restrained  by  no  mean  circumstance  of  personal 
cost  or  sacrifice,  and  with  a  devoted  loyalty  to  that 
government  which  has  been  their  shield  and  protection, 
they  have  gone  forth  from  among  us,  a  noble  brotherhood, 
to  imperil  life,  and  all  that  life  holds  dear,  to  battle,  not 
for  glory  or  renown,  but  to  maintain  for  and  perpetuate 
to  us,  in  common  with  all  the  country,  the  great  and 
glorious  principles  of  constitutional  liberty,  the  heritage 
of  a  free  people. 

"Enduring  all  the  hardships  and  privations  of  the 
camp,  denying  themselves  the  comforts,  the  luxuries  and 
privileges  of  home  communions,  which  we  are  permitted 
to  enjoy,  far  away  from  us,  on  a  stranger  and  hostile 


VERMONT  81 

soil,  worn  and  wasted  by  many  sufferings,  yet  nobly  bear- 
ing up  under  them  all  with  a  patience  and  fortitude 
worthy  of  the  cause  for  which  they  suffer,  knowing  but 
one  duty,  service  to  their  country,  they  appeal  in  language 
too  strong  to  be  resisted,  for  that  privilege  which  all  free- 
men so  highly  prize,  which,  whether  at  home  or  on  the 
field,  is  ever  dear  to  their  hearts,  the  right  to  exercise 
the  elective  franchise,  that  distinguishing  mark  of  freedom 
and  freemen.  It  surely  needs  no  words  of  mine  to  urge 
this  upon  your  consideration,  and  while  I  am  deeply 
sensible  of  the  difficulties  that  surround  the  question, 
and  of  the  opportunity  which  would  be  afforded  for  abuse 
of  the  privilege,  yet,  I  am  fully  confident,  that  it  is  in  the 
power  of  the  Legislature  to  frame  a  law,  which,  while  it 
will  secure  the  State  to  all  reasonable  extent  against 
frauds  and  abuse,  will  also  secure  to  the  citizen  soldiers 
a  privilege  which  it  is  ungenerous  to  deny,  and  which 
can,  in  all  soundness  of  convincing  argument,  be  urged 
and  claimed  as  a  right.  They  are  rendering  high  service 
to  the  country,  in  the  stupendous  conflict  which  is  now 
stirring  the  nation  to  its  foundations,  by  their  presence 
on  the  field;  and  shall  they  be  denied  a  voice  at  the  ballot- 
box,  where  preeminently  the  measures  which  are  to  affect, 
for  weal  or  woe,  these  great  and  pending  issues  must  of 
necessity  be  decided. 

"None,  more  than  they,  have  a  vital  interest  in  these 
great  questions,  none  have  a  higher  appreciation  of  the 
merits  involved.  Ours  are  no  hireling  soldiery,  who  blindly 
execute  the  will  of  superiors,  without  knowing  for  what 
they  fight.  They  have  gone  from  among  the  sovereign 
people,  intelligent  freemen,  constituent  elements  of  the 
government,  to  contend  for  a  cause  in  which  they  have  a 
personal  interest,  and  to  maintain  principles  which,  when 
the  contest  is  finally  closed,  will  affect  them  in  common 
with  all  the  rest,  and  are  fully  entitled  to  the  privilege 
of  exercising  this  right."  l 


1  Journal  of  the  House  of  Representatives,  1863,  pp.  44-46. 


82  VOTING  IN  THE  FIELD 

On  October  14  a  bill  to  authorize  soldiers  to  vote  in 
the  field  was  introduced  in  the  House,  and  numbered 
House  44. l  On  October  21  it  was  referred  to  the  Com- 
mittee on  Elections.2  On  October  28,  the  Committee  on 
Elections  made  a  report,  and  the  bill  and  report  were 
laid  on  the  table  and  300  copies  printed.3  Apparently 
the  matter  had  been  argued  before  the  Committee, 
and  the  acts  passed  in  Ohio,  Iowa  and  Wisconsin 
brought  to  their  attention,  for  they  referred  to  these 
acts  in  their  report.  They  say  that  "it  is  due  to  the 
soldier,  to  the  supporters  of  the  bill,  and  to  the 
General  Assembly  that  we  state  some  of  the  reasons 
for  our  opinion  that  the  act  is  unconstitutional." 
They  then  say,  "The  important  inquiry  is,  whether 
the  Constitution  has  so  prescribed  the  time,  place  and 
manner  of  holding  elections,  or  either  of  them,  as  to 
leave  no  power  in  the  General  Assembly  to  prescribe 
them,  or  either  of  them,  in  the  manner  proposed  in 
the  bill  in  question."  Then  follows  an  elaborate 
discussion  of  the  provisions  of  the  Constitution  upon 
this  question.  The  conclusion  of  the  report  was  that 
the  Committee  were  of  the  opinion  that  the  provisions 
of  the  bill  "in  respect  to  the  election  of  Governor, 
Lieutenant  Governor,  Treasurer,  Senators  and  county 
officers  are  unconstitutional."  They  said: 

"The  bill  in  question  proposes  to  give  the  Governor 
authority  to  appoint  and  commission  some  person  or 
persons  and  send  them  out  of  the  State  to  receive  votes 
in  other  States,  and  bring  or  send  them  back  to  elect  a 
governor  (possibly  to  elect  the  governor  who  appointed  the 
commissioners),  and  the  other  officers  named  in  the  bill. 
But  the  intelligence  and  sense  of  the  framers  of  our  Con- 
stitution enabled  them  to  guard  against  such  voting  and 


1  House  Journal,  pp.  63,  68.  *  Ibid.,  p.  86.  3  Ibid.,  p.  138. 


VERMONT  83 

votes,  and  thereby  make  certain  the  purity  of  elections. 
The  bill  calls  for  the  passage  of  a  law  by  which  other 
officers  than  those  named  in  the  Constitution,  amenable 
to  no  valid  law  and  subject  to  no  penalty  that  could  be 
inflicted,  shall  have  the  care  and  custody  of  votes  and 
certificates  of  votes  in  their  passage  from  the  hands  of  the 
qualified  electors  to  the  proper  canvassing  committee. 
And  the  bill  in  effect  proposes  nothing  less  than  the  passage 
of  a  law  by  this  General  Assembly  that  shall  abrogate 
every  constitutional  provision  relating  to  elections,  and 
make  the  time,  place  and  manner  of  elections  and  the 
qualifications  of  electors  depend  upon  the  mere  will  of  the 
General  Assembly.  Such  provisions  are  repugnant  to 
the  letter  and  spirit  of  the  Constitution,  and  incompatible 
with  our  free  institutions." 

They  referred  also  to  the  opinion  of  the  Supreme 
Court  of  Connecticut,  the  opinion  of  the  Supreme 
Court  of  New  Hampshire,  and  to  the  opinion  of  the 
Supreme  Court  of  Pennsylvania  in  support  of  their 
position.  They  did  not  say  whether  the  bill  would 
or  would  not  be  constitutional  so  far  as  the  election 
of  presidential  electors  and  members  of  Congress  was 
concerned.  The  report  was  written  by  W.  C.  Wilson, 
afterwards  a  justice  of  the  Supreme  Court  of  Vermont.1 

On  November  4  the  bill  was  taken  from  the  table 
and  refused  a  third  reading.2  But  on  November  7,  in 
the  House  unanimous  consent  was  given  to  the  intro- 
duction of  "an  act  providing  for  soldiers'  voting,"3 
which  was  referred  to  the  Committee  on  Elections. 
On  November  9,  Mr.  Wilson  from  the  Committee  re- 
ported a  resolution  which  was  adopted  as  follows: 

"Resolved,  that  House  Bill  175,  entitled  An  Act  pro- 
viding for  soldiers'  voting,  be  submitted  forthwith  to  the 

1  House  Journal,  1863,  Appendix,  p.  312. 

2  House  Journal,  p.  183.  *  House  bill,  175. 


84  VOTING  IN  THE  FIELD 

Judges  of  the  Supreme  Court,  and  that  they  be  requested 
to  give  their  opinion  in  writing  in  respect  to  the  constitu- 
tionality of  the  provisions  of  said  bill."  l 

The  House  had  already  voted  to  adjourn  on  the 
eleventh  of  November,  and  therefore  the  time  within 
which  the  opinion  of  the  Court  could  be  obtained 
was  so  short  as  to  render  it  practically  impossible  to 
have  it  in  season  for  action  at  that  session.  On 
November  10  a  communication  was  received  from  the 
Judges  of  the  Supreme  Court  saying  that  there  was 
no  constitutional  provision  in  Vermont  by  which  the 
Legislature  could  "require  the  opinions  of  the  Judges 
of  their  highest  Court  upon  the  constitutional  validity 
of  the  laws  proposed  for  adoption,"  and  that  "the 
very  late  period  at  which  the  request  is  made  of  us, 
and  the  very  short  time  that  can  be  had  to  examine 
and  consider  the  subject  in  order  to  have  our  answer 
of  any  service  to  you,  render  an  answer  wholly 
impossible."  And  the  Court  respectfully  submitted 
this  as  the  only  answer  they  were  able  to  make  to  the 
resolution.2  Upon  the  reception  of  this  communica- 
tion from  the  Judges,  the  House  amended  the  bill  by 
adding  to  it  a  section  as  follows: 

"This  act  shall  not  take  effect  until  the  Governor 
submits  the  same  to  the  Judges  of  the  Supreme  Court 
with  the  inquiry:  Are  the  provisions  of  this  act  constitu- 
tional? and  until  the  Governor  has  obtained  in  writing  the 
opinion  of  the  said  Judges  thereon.  And  if  said  Judges 
decide  that  the  provisions  of  the  act,  or  certain  parts 
thereof,  are  unconstitutional,  then  the  same,  or  such  parts 
thereof  as  the  Judges  shall  decide  are  unconstitutional, 
shall  be  null  and  void,  and  the  residue  shall  remain  in  full 
force  and  virtue." 


1  House  Journal,  p.  219. 

2  Appendix  to  House  Journal,  1863,  p.  327. 


VERMONT  85 

and  the  rules  were  suspended,  and  the  bill  passed  and 
sent  to  the  Senate.1  The  bill  was  received  in  the 
Senate  on  the  evening  of  November  10  2  and  referred 
to  the  Committee  on  the  Judiciary.3  On  November 
11,  the  Committee  reported  the  bill  without  expres- 
sion of  opinion,  and  the  bill  was  passed.4 

The  Governor  submitted  the  bill  to  the  Judges 
of  the  Supreme  Court  for  their  opinion  as  to  its  con- 
stitutionality, as  provided  by  the  act,  and  on  April 
1,  1864,  the  Judges  gave  a  full  and  unanimous  opinion 
in  writing,  that  the  act,  so  far  as  it  related  to  the 
right  of  the  soldiers  to  vote  for  members  of  Congress 
and  electors  of  President  and  Vice-president  of  the 
United  States,  was  constitutional,  and  that  so  much 
of  it  as  conferred  the  right  to  vote  for  Governor, 
Lieutenant-governor  and  Treasurer  of  the  State  was 
unconstitutional.  On  May  10,  1864,  the  Governor 
made  proclamation  that  so  much  of  the  Act  as  pro- 
vided for  voting  for  members  of  Congress  or  for 
electors  was  "the  law  of  the  State."5 

October  13,  1864,  the  Governor  in  his  message 
transmitted  the  answer  of  the  Judges  to  the  Legisla- 
ture, and  said  that  he  had  caused  suitable  and  proper 
blanks  and  forms  for  making  the  necessary  returns  to 
the  proper  officers  to  be  forwarded  to  the  several 
organizations  in  the  field  in  season  for  the  soldiers  to 
vote  for  members  of  Congress  at  the  regular  election 
for  those  officers.  He  then  said: 

"There  are  some  amendments  to  the  law  which  should 
receive  your  immediate  attention.  The  law  now  provides 
that  at  the  election  for  Electors,  to  be  held  on  the  first 
Tuesday  of  November,  each  elector  authorized  to  vote  by 


1  House  Journal,  pp.  233,  238.  3  Ibid.,  p.  156. 

1  Senate  Journal,  p.  154.  4  Ibid.,  p.  165. 

6  House  Journal,  1864,  Appendix,  375. 


86  VOTING  IN  THE  FIELD 

this  act  shall  have  the  right  to  vote  for  Electors.  The 
election  for  Electors  is  by  law  to  be  held  on  the  Tuesday 
next  after  the  first  Monday  of  November,  instead  of  the 
first  Tuesday.  This  error  should  be  corrected  to  conform 
to  the  proper  day.  Section  eleventh  of  the  act  provides 
that  'the  Secretary  of  State  shall  return  said  votes  to  the 
General  Assembly,  to  be  canvassed  the  same  as  provided 
in  reference  to  votes  for  the  same  officers  cast  in  this 
State.'  By  the  laws  of  this  State  the  County  Clerks 
'shall  meet  at  the  State  House,  in  Montpelier,  on  the 
third  Tuesday  of  said  November,  and  there  publicly 
canvass  said  votes.'  The  law  should  be  so  amended  as 
to  provide  that  the  Secretary  of  State  shall  return  the 
votes  for  Electors  to  the  Board  of  Canvassers  when 
assembled.  Provision  should  also  be  made  for  qualifying 
the  electors.  According  to  the  present  provisions  of  the 
act,  only  qualified  electors  are  permitted  to  vote.  As 
there  are  many  now  in  the  military  service  of  the  United 
States  from  this  State,  who  have,  since  entering  the  service, 
arrived  at  legal  age,  they  should  be  entitled  to  the  privi- 
leges of  the  act,  and  provision  should  be  made  giving 
authority  to  special  constables  to  administer  the  necessary 
oaths.  Provision  should  also  be  made  giving  to  volunteer 
officers  having  commissions  from  the  United  States  author- 
ities, who  are  citizens  of  this  State,  the  right  to  vote  at 
the  polls  of  any  company  from  this  State  in  the  brigade, 
division  or  corps  to  which  they  may  be  attached.  I  would 
therefore  recommend  that  the  act  be  amended  in  these 
respects  at  an  early  day,  that  proper  instructions  and 
blanks  may  be  forwarded  to  the  field  in  season  for  the 
approaching  election."  * 

On  October  15,  1864,  a  bill  was  introduced  in  the 
House2  entitled  "An  Act  to  amend  the  soldiers' 
voting  act  of  1863,"  which  was  referred  to  the  Com- 
mittee on  Military  Affairs;  and  another  bill,3  was 

1  See  Vermont  Reports,  Veazy,  Vol.  2,  p.  666. 

*  House  Journal,  No.  10.  »    Ibid.,  No.  11. 


VERMONT  87 

introduced  at  the  same  time  in  amendment  of  the 
soldiers'  voting  bill  of  1863,  which  was  referred  to  the 
Committee  on  Military  Affairs.1  On  October  15, 
House  Bill  11  was  passed  and  sent  to  the  Senate. 
On  October  17  the  bill  was  received  in  the  Senate  and 
referred  to  the  Committee  on  Elections.2  On  October 
18,  the  bill  was  passed  by  the  Senate.3  On  October 
27,  the  Committee  on  Military  Affairs  reported  ad- 
versely to  House  Bill  10,  and  the  same  was  refused 
a  passage.4  On  October  28,  1864,  a  bill  was  intro- 
duced in  the  House  to  amend  the  act  providing  for 
soldiers'  voting,  which  was  referred  to  the  Committee 
on  the  Judiciary.5  On  November  3,  the  Committee 
reported  adversely  upon  the  bill,  and  it  was  refused 
a  passage.6 

The  bill  of  1863,  provided  that  all  qualified  electors 
in  the  actual  military  service  of  the  United  States, 
"either  within  the  State  or  without  the  same,"  should 
be  entitled  to  vote  at  the  several  posts,  camps  or 
places  where  they  were  on  election  days  "as  fully  as 
if  such  electors  were  present  at  the  places  where  such 
election  was  held."  It  then  provided  that  elections 
in  the  field  should  be  conducted,  so  far  as  practicable, 
in  the  manner  provided  by  the  general  election  laws 
of  the  State,  and  that  at  the  election  held  on  the  first 
Tuesday  of  September  each  elector  should  have  the 
right  to  vote  for  Governor,  Lieutenant-governor, 
Treasurer,  and  members  of  Congress,  and  at  the 
election  to  be  held  on  the  first  Tuesday  of  November, 
should  have  the  right  to  vote  for  presidential  elec- 
tors. The  vote  was  required  to  be  by  companies. 
The  three  ranking  officers  were  to  act  as  special 

1  House  Journal,  pp.  49,  55.  4  House  Journal,  p.  100. 

2  Senate  Journal,  p.  41.  6  House  Journal,  1864,  p.  114. 

3  Ibid.,  p.  52.  6  House  Journal,  p.  164. 


88  VOTING  IN  THE  FIELD 

constables  to  preside  at  elections  in  the  field,  and 
were  to  appoint  two  electors  to  act  as  clerks.  The 
constables  and  clerks  were  to  take  the  oaths  to  sup- 
port the  Constitution  of  the  United  States  and  the 
Constitution  of  Vermont,  and  to  perform  their  duties 
according  to  law,  and  to  "studiously  endeavor  to 
prevent  all  fraud,  deceit  or  abuse  in  conducting 
the  election."  This  oath  was  to  be  subscribed,  be 
annexed  to,  and  returned  with  the  poll  books.  The 
polls  were  to  be  opened  and  closed  at  such  hours  as 
the  constables  should  determine,  provided  a  sufficient 
length  of  time  was  given  for  all  voters  of  the  com- 
pany to  vote,  and  notice  of  the  time  of  closing  of 
the  polls  was  to  be  given  at  least  one  hour  before 
they  were  closed.  The  ballots  to  be  used  at  the 
elections  in  the  field  were  to  have  printed  or  written 
at  their  top  the  name  of  the  county  in  which  the 
person  offering  to  vote  was  a  voter,  and  no  ballot 
was  to  be  received  which  did  not  thus  show  the  name 
of  the  county.  Each  ballot  in  addition  was  to  have 
printed  or  written  upon  it  the  name  of  the  person 
voted  for,  with  the  designation  of  the  office  which 
he  was  intended  to  fill.  The  ballot  thus  prepared 
was  to  be  on  one  piece,  and  all  the  ballots  deposited 
in  one  box.  And  it  was  made  the  duty  of  the 
constables  to  be  satisfied  that  the  person  offering  to 
vote  was  a  legal  voter  of  the  county  which  was  shown 
at  the  top  of  the  ballot. 

It  was  made  the  duty  of  the  officers  acting  as 
constables,  and  was  the  privilege  of  each  elector,  to 
challenge  any  person  offering  to  vote,  and  every  per- 
son challenged  was  to  be  examined  under  oath  as  to 
his  residence  and  qualifications  as  an  elector.  The 
clerks  were  to  keep  correct  poll-lists  containing  the 
names  of  the  voters  and  their  respective  places  of 


VERMONT  89 

residence  in  the  State,  giving  the  name  of  the  town, 
city  or  county  in  which  they  severally  had  a  residence, 
and  the  constables  were  to  certify  them  to  be  correct. 
After  the  polls  were  closed  the  constables  were  to 
canvass  the  votes  cast,  and  make  a  written  statement 
of  the  result.  A  copy  of  such  statement  duly  cer- 
tified by  the  constables  was  to  be  transmitted  to  the 
Governor  of  the  State,  together  with  one  of  the  poll- 
lists,  and  the  other  copy  with  the  poll-list  was  to  be 
sent  to  the  Secretary  of  State.  All  ballots  were  also 
to  be  sealed  up  and  transmitted  to  the  Secretary  of 
State,  and  the  Secretary  of  State  was  to  return  the 
votes  to  the  General  Assembly  to  be  canvassed,  the 
same  as  provided  for  in  reference  to  votes  for  the  same 
officers  cast  in  the  State.1 

As  amended  by  the  act  of  1864,  the  act  provided 
that  every  citizen  who  was  twenty-one  years  of  age 
or  upwards,  in  the  military  service  of  the  United 
States,  should  be  allowed  to  vote  in  the  field  on  the 
day  of  any  election  appointed  by  the  laws  of  the 
State  or  the  United  States,  and  also  provided  that  at 
the  election  for  presidential  electors  in  November 
each  elector  authorized  to  vote  by  the  act  should  have 
the  right  to  vote  for  electors.2 

At  the  presidential  election  in  1864,  Vermont 
soldiers  voted  in  the  field,  but  there  was  delay  in 
transmitting  the  votes  to  be  counted  in  the  State,  so 
that  the  recorded  vote  is  only  243  for  Lincoln,  and 
49  for  McClellan.3 

The  soldiers'  voting  Acts  of  1863  and  of  1864  were 
repealed  in  1880  by  Chapter  212  Revised  Laws. 

1  Acts  and  Resolves,  1863,  p.  7. 

2  Laws  of  Vermont,  1864,  p.  27. 

3  Certificate  in  office  of  Secretary  of  State. 


CHAPTER  XI 

WEST  VIRGINIA 

WEST  VIRGINIA  was  admitted  a  State  on 
June  20,  1863.  Its  Constitution  provided 
that  white  male  citizens  should  be  entitled  to  vote 
"at  all  elections  held  within  the  election  district  in 
which  they  resided."  l  The  first  session  of  the  Legis- 
lature was  held  on  June  20,  1863,  and  continued  in 
session  under  various  adjournments  until  the  eleventh 
day  of  December  in  the  same  year.  On  November 
13,  1863,  a  bill  was  passed  to  "regulate  elections  by 
the  people."  One  section  of  this  act  provided  that 
"any  person  entitled  to  vote  in  a  township  who  was 
necessarily  absent  therefrom  on  the  day  of  any  elec- 
tion in  the  service  of  the  United  States,  or  this 
State,  might,  at  any  time  within  twenty-five  days 
next  preceding  the  election,  enclose  his  ballot  in  an 
envelope  or  cover  and  seal  up  the  same,  write  his 
signature  in  his  own  proper  hand  on  the  outside  of 
the  envelope  or  cover,  and  address  the  same  to  the 
supervisors  and  inspectors  of  the  township  of  which 
he  was  a  resident,  either  by  their  names  or  official 
designation,  and  transmit  the  same  by  mail  or  other- 
wise." If  the  envelope  was  received  by  the  super- 
visors on  or  before  the  day  of  the  election  it  was  to 
be  produced  at  the  polls  held  in  the  township,  and 
if  the  supervisors  were  satisfied  that  the  signature 
on  the  outside  of  the  envelope  was  genuine,  and  that 

1  Constitution  of  West  Virginia,  1863,  Article  3,  Section  1. 


WEST  VIRGINIA  91 

the  person  would,  if  present,  be  entitled  to  vote  at 
the  polls,  they  should  open  the  envelope  or  cover, 
and  if  the  ballot  found  therein  was  single,  should 
deposit  the  same  in  the  box  without  unfolding  or 
unrolling  it  so  as  to  disclose  its  contents,  and  the 
ballot  should  have  "the  same  effect  as  if  the  person 
so  transmitting  his  vote  were  personally  present 
giving  the  vote.'*  The  clerks  were  then  to  enter  the 
name  of  such  voter  on  the  poll-list,  adding  thereto 
the  word  "absent."  The  envelopes  or  covers  were 
to  be  preserved  by  the  supervisors  and  filed  by 
them  after  the  close  of  the  polls  with  the  clerk  of 
the  supervisors  of  the  county  for  public  inspection.1 
This,  it  will  be  seen,  was  proxy  voting,  not  real  vot- 
ing in  the  field.  The  ballot  was  not  cast  until  it  was 
deposited  in  the  ballot  box  by  the  inspectors  of  the 
township  at  home.  The  Act  was  founded  upon 
the  theory  that  the  act  of  the  inspectors  in  casting 
the  ballot  which  was  sent  to  them  by  the  soldier 
was  the  act  of  the  soldier  himself  precisely  as  though 
he  were  "personally  present  giving  his  vote."  In 
short,  the  Act  made  the  inspectors  who  received  the 
ballot  from  the  soldier  the  proxy  of  the  soldier  to 
cast  his  ballot  for  him.  Of  course,  no  separate 
record  of  these  votes  was  kept,  and  it  could  n  t  be 
told  how  the  soldiers  voted. 


1  Constitution  and  Statutes  of  West  Virginia,  p.  116. 


T 


CHAPTER  XII 

MICHIGAN 

HE   Constitution  of  Michigan  in  force  at  the 
time  of  the  Civil  War  provided  that, 


"In  all  elections  every  male  inhabitant  of  this  State 
.  .  .  shall  be  an  elector  and  entitled  to  vote,  but  no  one 
shall  be  an  elector  or  entitled  to  vote  at  any  election 
unless  he  shall  be  above  the  age  of  twenty -one  years,  and 
has  resided  in  this  State  six  months,  and  in  the  township 
or  ward  in  which  he  offers  to  vote  twenty  days  next  pre- 
ceding such  election."  1 

A  bill  to  enable  soldiers  to  vote  in  the  field 
was  introduced  in  the  Senate,  and  referred  to 
the  Committee  on  Privileges  and  Elections  on  the 
thirteenth  of  January,  1863.2  On  February  5  the 
Committee  reported  that  in  their  opinion  the  Con- 
stitution in  its  true  intent  and  meaning  prohib- 
ited the  passage  of  any  soldiers'  voting  law  under 
which  elections  should  be  held  out  of  the  State. 
They  said  that  the  Constitution  plainly  required 
every  elector  to  offer  his  vote  in  the  township  or 
ward  where  he  resided,  and  not  elsewhere,  that  the 
soldier  "must  vote  in  Michigan  if  he  votes  at  all, 
and  not  in  Virginia,  Carolina,  Louisiana,  New  York 
or  Canada."  3  On  February  17,  the  bill  was  referred 
to  the  Judiciary  Committee,  with  instructions  to 
confer  with  the  Attorney  General  as  to  its  constitu- 

1  Article  V,  Constitution  of  Michigan,  1850. 

*  Senate  Journal,  1863,  p.  38.  3  Ibid.,  p.  188. 


MICHIGAN  93 

tionality.1  On  February  23,  the  Judiciary  Committee 
was  discharged  from  the  consideration  of  the  bill, 
and  the  Attorney  General  was  requested  to  report 
to  the  Senate  at  his  earliest  convenience  his  opinion 
in  reference  to  the  constitutionality  of  the  bill.2  On 
February  26,  the  Attorney  General  gave  an  opinion 
in  which  after  reviewing  the  arguments  against  the 
constitutionality  of  the  act,  he  said:  "It  is  most 
unquestionably  my  opinion  that  the  Legislature  has 
the  power  given  by  the  Constitution  to  pass  the  bill 
referred  to  me."  3 

The  bill  was  bitterly  contested  after  this.  On 
March  16,  an  attempt  was  made  to  take  it  from  the 
table,  but  it  was  defeated  by  a  vote  of  19  to  8.  On 
March  18,  the  motion  prevailed  by  a  vote  of  15  to 
13.4  A  motion  was  then  made  that  the  bill  be  placed 
in  order  for  a  third  reading,  which  was  defeated  by  a 
vote  of  15  to  12.  There  was  then  a  motion  to  recon- 
sider this  vote,  and  a  motion  to  lay  the  motion  to 
reconsider  on  the  table,  which  was  defeated  by  a  vote 
of  16  to  11,  and  the  motion  to  reconsider  prevailed.5 
On  March  6  a  majority  of  the  Committee  on  Elec- 
tions of  the  House,  to  whom  the  bill  to  enable  sol- 
diers to  vote  in  the  field  had  been  referred,  reported 
that  the  passage  of  the  bill  "would  be  unconstitu- 
tional as  well  as  impracticable."  They  said  they 
were  aware  that  the  Attorney  General  of  the  State 
had  come  to  a  different  conclusion,  but  the  Committee 
after  a  careful  examination  were  unable  to  see  any 
intention  on  the  part  of  the  framers  of  the  Consti- 
tution to  give  the  right  to  vote  out  of  the  State,  or 
to  permit  the  Legislature  to  give  the  right  to  vote  out 


1  Senate  Journal,  1863,  p.  291.  4  Ibid.,  p.  813. 

2  Ibid.,  p.  348.  •  Ibid.,  p.  814. 
'  Ibid.,  p.  429. 


94  VOTING  IN  THE  FIELD 

of  the  State.  They  seem  to  have  had  very  great 
difficulty  with  the  practicability  of  permitting  soldiers 
to  vote  out  of  the  State,  and  a  considerable  portion 
of  their  elaborate  report  is  spent  upon  that  matter, 
They  say  that  when  polls  are  opened  in  the  field,  as 
provided  by  the  bill,  "what  power  or  authority  is 
there  to  prevent  these  persons  who  are  not  qualified 
voters  coming  forward  and  offering  to  vote,  and,  if 
objected  to,  from  swearing  their  votes  in?  The  per- 
son so  offending  would  be  at  the  time  without  the 
jurisdiction  of  the  State,  and  not  in  its  service,  and 
could  commit  any  crime  against  the  State."  They 
gave  another  reason  so  fanciful  that  I  quote  it: 
"There  being  no  power  to  enforce  the  election  laws, 
the  ballot  boxes  might  be  stuffed  or  destroyed  by  a 
disorderly  rabble,  either  of  soldiers  or  of  people  in 
the  towns  through  which  the  commissioner  would 
have  to  pass  on  his  return  to  this  State."  1 

On  March  18  a  minority  of  the  Committee  filed 
an  elaborate  report  holding  that  the  bill  was  con- 
stitutional, and  recommending  that  it  pass.  They 
elaborated  the  proposition  that  it  is  not  necessary  for 
the  Constitution  to  provide  that  electors  may  vote 
out  of  the  State.  If  the  Constitution  is  silent  upon 
that  subject;  if  it  does  not  fix  the  place  of  voting, 
the  Legislature  may  fix  it.  That  is,  that  the  Consti- 
tution is  merely  a  restraining  power  and  not  a  grant- 
ing power.  They  also  quoted  the  law  of  Michigan 
providing  that  a  man  who  in  fighting  a  duel  inflicts 
a  mortal  wound  while  out  of  the  State,  can  be  pun- 
ished when  he  comes  into  the  State  for  the  act  done 
without  the  State.  They  also  say,  the  Legislature 
has  passed  an  act  disfranchising  a  soldier  who  deserts, 


1  House  Journal,  1863,  p.  1028. 


MICHIGAN  95 

and  the  act  thus  punishes  desertion  whether  it  occurs 
in  Michigan  or  out  of  Michigan.1  The  bill  was  passed 
on  March  19  by  a  vote  of  54  Republicans  to  31 
Democrats.2 

On  March  19,  a  motion  to  take  up  the  bill  which 
had  passed  the  House  was  made  in  the  Senate,  and 
the  previous  question  was  moved.  There  was  then 
a  motion  to  adjourn,  which  was  defeated.  The  call 
for  the  previous  question  was  sustained  by  a  vote  of 

16  yeas  to  13  nays.     The  main  question  was  ordered, 

17  yeas  to  10  nays,  but  the  main  question,  being   a 
motion  to  take  up  the  bill,  was  defeated  by  a  vote  of 
15   Republicans    to    14    Democrats.     Thus    died    the 
soldiers'  voting  bill  of  1863,  by  a  majority  of  one  in 
the  Senate. 

In  1864,  Governor  Blair,  who  was  an  excellent 
lawyer,  said  in  his  message  of  January  19: 

"At  your  session  a  year  ago,  a  bill  passed  the  House  of 
Representatives,  providing  for  the  exercise  of  the  right  of 
suffrage  in  our  elections  by  our  soldiers  absent  from  the 
State  in  the  service  of  the  United  States.  This  bill  reached 
the  Senate  at  the  very  heel  of  the  session  and  failed,  it 
was  understood,  for  want  of  time  to  consider  it.  The 
subject  was  one  of  great  importance  and  surrounded  with 
grave  doubts  and  difficulties.  Perhaps  the  minds  of  mem- 
bers were  not  altogether  settled  at  that  time  as  to  the 
rightfulness  or  policy  of  such  a  law.  The  Constitutions 
of  the  States  have  all  been  framed  without  any  view  to 
such  a  condition  of  things  as  the  present;  and  there  has 
always  been  in  this  country,  as  in  England,  great  jealousy 
of  the  army  mingling  in  the  affairs  of  civil  administration. 
During  the  past  year,  however,  very  great  consideration 
has  been  given  to  the  subject  in  nearly  all  the  loyal  States. 
It  has  come  into  judgment  before  the  highest  tribunals  of 

1  House  Journal,  1863,  p.  1476.  2  Ibid.,  p.  1564. 


96  VOTING  IN  THE  FIELD 

several  of  them,  eliciting  very  learned  and  patriotic  opin- 
ions from  the  judges,  which  have  thrown  great  light  upon 
it,  and  gone  far  to  establish  the  legal  principles  which 
must  guide  all  proper  legislation  in  that  direction. 

"That  patriotism,  justice  and  sound  policy  require  the 
passage  of  such  laws,  wherever  they  can  be  constitutionally 
enacted,  seems  to  be  now  generally  agreed.  The  volunteer 
army  of  the  United  States  is  composed  of  the  people  of  the 
United  States.  They  have  left  their  various  occupations 
in  civil  life  and  taken  up  arms  at  the  call  of  their  country, 
not  to  become  professional  soldiers,  but  to  defend  their 
country  and  government  from  destruction,  and  their 
homes  and  property  from  desecration  and  pillage.  Not  to 
renounce  civil  life  and  the  pursuits  of  peace,  but  to  estab- 
lish, upon  an  enduring  basis,  the  right  to  both,  for  them- 
selves and  their  posterity.  With  a  patriotism  and  courage 
of  everlasting  remembrance  they  have  periled  everything 
that  then*  country  and  its  free  institutions  may  continue 
to  exist.  They  are  absent  from  the  polls  of  the  elections 
in  their  several  towns  and  wards,  beating  back  the  power 
of  a  causeless  and  cruel  rebellion  in  order  that  those  very 
elections  may  be  held  in  peace,  and  that  the  right  to  hold 
them  and  to  have  their  results  respected  and  obeyed  shall 
continue  forever.  If  these  volunteer  citizen  soldiers 
should  not  have  a  voice  in  the  civil  administration  of  the 
government  for  which  they  fight,  then  it  would  be  well 
to  inquire  who  is  worthy  of  it.  Though  soldiers,  they 
have  not  ceased  to  be  citizens  and  residents,  nor  is  their 
stake  less  in  the  country  than  that  of  those  who  remain  in 
peace  at  home.  Surely,  he  who  stands  faithfully  by  his 
country  in  the  shock  of  battle  may  be  safely  trusted  at 
the  ballot  box,  though  it  should  be  carried  to  him  at  Vicks- 
burg  or  Chattanooga."  1 

Governor  Blair  then  considered  the  question  of 
the  constitutionality  of  the  act  in  a  very  thorough 
way,  and  finally  said: 

1  House  Journal,  1864,  pp.  36,  37. 


MICHIGAN  97 

"After  giving  the  subject  considerable  attention,  I  do 
not  hesitate  to  recommend  the  passage  of  such  a  law,  by 
this  Legislature,  as  will  enable  the  soldiers  of  Michigan, 
while  absent  from  the  State  in  the  service  of  the  United 
States,  to  avail  themselves  of  the  right  which  they  have 
never  forfeited,  to  vote  in  all  the  State  and  local  elections. 
It  will  be  only  just  towards  them,  and  their  votes  will  be 
dangerous  to  traitors  only."  i 

The  Governor's  message  on  this  subject  and  two 
bills  for  soldiers'  voting  were  referred  in  the  House 
to  the  Judiciary  Committees  of  the  House  and  Senate, 
as  a  joint  committee,  with  instructions  to  report  bills 
upon  the  subject,  which  they  did  on  January  23rd, 
with  a  recommendation  that  "the  bills  do  not  pass."2 
On  January  25,  a  minority  of  the  Committee  reported 
recommending  the  legislation,  saying  there  could  be 
no  doubt  of  the  power  of  the  Legislature  to  pass  the 
law;  that  the  Supreme  Court  of  Iowa  had  passed 
upon  a  law  almost  like  the  law  before  them  and  de- 
cided it  to  be  constitutional,  and  in  their  opinion 
they  spoke  of  the  Constitution  of  Michigan  and  some 
other  States,  and  said  they  had  no  clause  prohibiting 
the  passage  of  such  laws;  and  besides,  the  minority 
said,  "the  Legislature  of  Michigan  has  on  several 
occasions  passed  acts  authorizing  elections  to  be  held 
out  of  the  district  in  which  the  elector  resides."  3  It 
appears  that  the  bill  prepared  by  the  majority  was 
for  proxy  voting,  but  the  bill  recommended  by  the 
minority  sent  the  ballot  box  to  the  soldier  in  the 
field,  and  under  it  votes  were  cast  and  declared  in 
the  field  precisely  as  at  home.  The  committee  say: 

"The  process  is  simple  and  easy  of  comprehension,  and 
will  more  fully  effect  the  object  of  letting  all  vote  who  desire 

1  House  Journal,  1864,  p.  41.  *  Ibid.,  p.  66.  *  Ibid.,  p.  79. 


98  VOTING  IN  THE  FIELD 

so  to  do.  It  is  more  in  accordance  with  the  principles  of 
conducting  our  elections  at  home,  and  better  understood; 
almost  every  soldier  in  the  army  of  the  United  States  is 
qualified  to  act  as  an  inspector  of  election,  and  is  familiar 
with  all  the  workings  of  the  law."  l 

On  January  28,  the  bill  was  under  consideration 
and  debated  in  the  Committee  of  the  Whole,  which 
reported  the  bill  to  the  House  and  recommended  its 
passage.  An  amendment  was  moved  to  add  three 
sections,  one,  requiring  the  Supreme  Court  to  consider 
and  decide  within  four  months  after  the  passage  of 
the  act,  whether  the  act  or  any  part  thereof  was 
authorized  by  the  Constitution,  and  in  case  the 
Supreme  Court  should  decide  this  act  to  be  uncon- 
stitutional no  other  proceedings  should  be  had  under 
it;  another  section,  authorizing  the  Court  in  its 
discretion  to  invite  counsel  learned  in  the  law  to 
argue  the  question  as  to  the  constitutionality  of  the 
bill;  and  a  third  section,  providing  that  no  proceed- 
ings should  be  taken  under  the  act  until  after  three 
months  from  its  passage.  The  amendment  was  not 
adopted,2  and  on  January  29th,  the  bill  was  laid  upon 
the  table  and  ordered  to  be  printed.3  On  January  30 
the  bill  was  taken  from  the  table  and  ordered  to  a  third 
reading.4  On  the  same  day  the  bill  was  further  consid- 
ered, and  was  recommitted  to  the  Committee  on  the 
Judiciary.5  On  February  1  the  Judiciary  Committee 
reported  the  bill  with  accompanying  amendments,  and 
recommended  that  the  bill  when  amended  be  passed.6 
On  the  same  day  the  bill  was  amended  and  passed  by 
a  vote  of  59  Republican  yeas,  to  23  Democratic  nays. 
One  member  obtained  consent  of  the  House  to  have 
entered  on  the  Journal  this  statement: 

1  House  Journal,  1864,  p.  83.  3  Ibid.,  p.  160.  8  Ibid.,  p.  209. 

1  Ibid.,  p.  154.  «  Ibid.,  p.  188.  •  Ibid.,  p.  215. 


MICHIGAN  99 

"I  vote  nay  on  this  question  for  the  reason  that  in  my 
opinion  the  latter  clause  of  section  1,  of  article  7,  of  the 
Constitution  of  Michigan,  by  clear  implication,  denies  to 
the  Legislature  the  power  to  authorize  any  elector  to  vote 
elsewhere  than  in  the  town  or  ward  in  which  he  has  resided 
ten  days  preceding  the  election."  x 

In  the  Senate  in  1864,  on  January  22,  the  Judiciary 
Committee  was  instructed  to  take  into  consideration 
the  constitutionality  of  any  law  to  enable  the  qualified 
electors  in  military  service  to  offer  their  votes  and  to 
vote  in  places  outside  the  jurisdiction  of  the  State; 
and  the  Committee  on  Military  Affairs  was  instructed 
to  inquire  into  the  necessity,  expediency,  practica- 
bility and  safety  of  passing  a  law  authorizing  soldiers 
to  vote  in  the  field.2  On  February  2,  the  Judiciary 
Committee  reported  in  a  milk  and  water  sort  of  a 
way,  getting  down  on  both  sides  of  the  question  as 
far  as  they  could,  and  yet  on  the  whole  holding  that 
the  Legislature  had  power  to  pass  the  soldiers'  voting 
act.3  The  minority  of  the  committee  filed  an  elabo- 
rate report,  occupying  about  fifteen  printed  pages, 
holding  that  the  Legislature  had  not  power  to  pass 
the  soldiers'  voting  bill.  They  referred  to  the  report 
of  the  Committee  on  Elections  in  1863,  and  adopted 
its  conclusions.  They  also  dealt  with  the  decisions 
in  the  State  of  Iowa  and  in  the  State  of  Wisconsin, 
holding  the  soldiers'  voting  act  constitutional,  and  said 
that  there  was  no  analogy  between  the  Constitutions 
of  the  States  of  Iowa  and  Wisconsin  and  the  Constitu- 
tion of  the  State  of  Michigan.  They  also  considered 
the  case  of  Chase  vs.  Miller,  41  Penn.,  403,  and 
adopted  the  conclusions  in  that  case.4 


1  House  Journal,  1864,  p.  223.  »  Ibid.,  p.  152. 

2  Senate  Journal,  1864,  p.  27.  «  Ibid.,  p.  158. 


100  VOTING  IN  THE  FIELD 

On  the  second  of  February,  the  bill  was  received 
from  the  House  and  considered  in  the  Committee  of 
the  Whole.1  On  February  3,  the  bill  was  under  con- 
sideration and  debated,  and  it  was  moved  to  amend 
by  providing  that  the  Supreme  Court  should  pass 
upon  the  bill,  and  if  they  found  it  unconstitutional 
no  action  should  be  taken  under  it,  and  that  the 
Court  might  invite  counsel  to  argue  the  question 
before  them,  and  the  amendment  was  defeated  by  a 
vote  of  16  yeas  to  13  nays.  The  bill  was  then  read 
a  third  time,  and  passed  by  a  vote  of  19  Republican 
yeas  to  10  Democratic  nays.  A  motion  to  amend  the 
title  of  the  bill  so  as  to  make  it  read:  "A  bill  to  teach 
our  soldiers  in  the  field  their  political  duty,  our  people 
a  disregard  of  Constitution  and  law,  and  to  make 
our  elections  a  farce,"  2  was  rejected  by  a  vote  of  21 
to  7. 

The  bill  was  returned  from  the  Senate  to  the  House 
with  amendments  on  February  3,  and  the  House 
concurred  in  the  amendments  by  a  vote  of  54 
Republican  yeas  to  18  Democratic  nays.  One  of  the 
amendments  was  "This  act  shall  continue  in  force 
during  the  present  war  and  no  longer."  The  bill  was 
finally  signed  by  the  Governor  on  February  5,  1864, 
and  took  effect  immediately. 

This  act  gave  the  right  to  every  soldier  in  the  field 
possessing  the  qualifications  named  in  the  Consti- 
tution of  the  State  of  Michigan  to  vote  at  any  elec- 
tion, whether  at  the  time  of  such  election  he  was  in 
the  State  or  not.  The  act  is  very  elaborate  in  its 
provisions  and  substantially  similar  to  that  of  the 
State  of  Iowa.  It  provided  for  the  appointment  of 
commissioners  and  for  the  return  and  counting  of 


1  Senate  Journal.  1864.  pp.  174.  183.  »  Ibid.,  p.  199. 


MICHIGAN  101 

the  votes  substantially  as  in  the  Iowa  act,  and  in 
the  same  way  it  provided  for  further  assurance  that 
no  informality  in  complying  with  its  provisions  should 
invalidate  an  election  held  under  it.1 

At  the  presidential  election  in  1864,  there  were 
cast  under  this  act  by  soldiers  in  the  field,  9,402  votes 
for  Lincoln,  and  2,595  for  McClellan.2 

The  validity  of  this  act  wras  brought  in  question 
and  passed  upon  by  the  Supreme  Court  on  January 
28,  1865,  in  the  case  of  Twitchell  vs.  Blodgett.3 
Twitchell  received  a  majority  of  the  votes  for  prose- 
cuting attorney  for  the  county  of  Washtenaw,  count- 
ing the  soldiers'  vote  cast  out  of  the  State  with  the 
other  votes,  but  excluding  the  soldiers'  vote  cast  out 
of  the  State,  Blodgett  was  elected.  The  County 
Canvassers  rejected  the  soldiers'  vote  on  the  ground 
that  the  act  under  which  it  was  taken  was  unconsti- 
tutional, and  gave  a  certificate  of  election  to  Blodgett. 
Twitchell,  thereupon,  took  the  case  to  the  Supreme 
Court.  There  were  three  judges  and  three  opinions. 

Judges  Campbell  and  Cooley  each  held  the  law 
unconstitutional  upon  the  ground  that  the  Constitu- 
tion of  Michigan  prescribed  the  place  where  the  elector 
should  vote,  so  that  the  Legislature  could  not  author- 
ize him  to  vote  anywhere  else.  They  occupied  thirty- 
nine  printed  pages  of  the  report  in  demonstrating 
this  proposition.  Martin,  C.  J.,  dissented  and  held 
that  the  place  where  the  voter  should  exercise  his 
right  to  vote  was  within  the  discretion  of  the  Legis- 
lature. He  stated,  with  great  force,  that  the  Con- 
stitution of  Michigan  of  1835  contained  an  express 
prohibition  against  voting  except  at  the  designated 


1  Laws  of  Michigan,  1864,  p.  40. 

1  Greeley's  American  Conflict,  Vol.  2,  p.  672. 

3  Twitchell  vs.  Blodgett,  13,  Mich.,  127. 


102  VOTING  IN  THE  FIELD 

place,  but  that  this  prohibition  was  omitted  in  making 
the  Constitution  of  1850,  under  which  the  question 
before  them  arose,  and  on  the  whole  he  held  that 
there  was  no  doubt  "that  the  whole  subject  of  the 
place  of  voting  is  within  the  legislative  jurisdiction." 
After  this  decision  the  people  of  Michigan  proceeded 
to  amend  their  Constitution. 

The  Governor  in  his  message  in  1865,  again  re- 
ferred to  the  soldiers'  voting  act,  and  said  that  he 
thought  it  required  amendment  in  some  particulars 
and  he  recommended  a  careful  revision  of  it.  But 
he  said: 

"In  its  main  features  the  law  has  been  found  to  operate 
admirably.  The  voting  under  it  was  done  with  as  much 
order  and  propriety  as  at  any  of  the  polls  in  the  State,  and 
I  hear  no  complaint  from  any  quarter  of  unfairness,  or 
undue  influence  exercised  over  the  soldiers.  The  voting 
was  free,  open,  fair  and  intelligent,  completely  answering 
any  objection  to  the  policy  of  such  a  law.  That  volunteers 
in  the  military  service  shall  vote  in  the  field  has  become 
the  settled  policy  of  the  whole  country,  and  care  should 
be  taken  to  perfect  our  laws  upon  the  subject."  l 

It  does  not  appear,  however,  that  the  Legislature 
paid  any  heed  to  the  Governor's  suggestion  that  the 
law  should  be  amended. 

To  amend  the  constitution  required  that  the 
amendment  should  be  agreed  to  by  two-thirds  of 
the  members  elected  to  each  House  of  the  Legis- 
lature, and  should  then  be  entered  on  the  journals 
with  the  yeas  and  nays  taken  thereon.  The  amend- 
ment was  then  to  be  submitted  to  the  electors,  and 
if  ratified  by  a  majority  of  the  voters  was  to  become 
a  part  of  the  Constitution. 

1  Michigan  Joint  Documents,  1864,  p.  16. 


MICHIGAN  103 

In  1866,  after  the  close  of  the  war,  an  amendment 
was  proposed  by  both  branches  of  the  Legislature, 
allowing  voting  in  the  field,  and  was  submitted  to 
the  people  in  November,  when  it  was  adopted  by  a 
vote  of  86,354  for  it,  and  13,094  against  it.  It  is 
now  a  part  of  Section  1,  Article  7,  of  the  Constitu- 
tion as  follows: 

"That  in  time  of  war,  insurrection  or  rebellion,  no 
qualified  elector  in  the  actual  military  service  of  the  United 
States,  or  of  this  State,  or  in  the  army  or  navy  thereof, 
shall  be  deprived  of  his  vote  by  reason  of  his  absence  from 
the  township,  ward  or  state  in  which  he  resides,  and  the 
legislature  shall  have  the  power,  and  shall  provide  the 
manner  in  which,  and  the  time  and  place  at  which  such 
absent  electors  may  vote,  and  for  the  canvass  and  return 
of  their  votes  to  the  township  or  ward  election  district 
in  which  they  respectively  reside  or  otherwise." 

In  February,  1866,  the  validity  of  the  Michigan 
act  for  soldiers'  voting  in  the  field,  as  applied  to  the 
election  of  members  of  Congress,  was  raised  in  the 
38th  Congress  in  the  contested  election  case  of 
Baldwin  against  Trowbridge.  Trowbridge  was  elected 
if  the  votes  cast  under  the  act  of  1864  out  of  the 
State  were  counted,  and  if  they  were  not  counted, 
Baldwin  was  elected.  The  majority  of  the  Committee 
on  Elections  reported  in  favor  of  Trowbridge.  They 
said,  there  is  an  unmistakable  conflict  of  authority 
between  the  act  of  the  Legislature  under  which  these 
soldiers'  votes  out  of  the  State  were  cast,  and  the 
Constitution  of  the  State  as  construed  by  its  Supreme 
Court.  But,  they  said,  so  far  as  the  election  of 
representatives  in  Congress  is  concerned,  the  power  to 
act  at  all  is  derived  from  the  Constitution  of  the 
United  States,  which  provides  that  "the  times,  places, 
and  manner  of  holding  elections  for  representatives, 


104  VOTING  IN  THE  FIELD 

shall  be  prescribed  in  each  State  by  the  legislature 
thereof."  And  they  held  that  the  legislature  under 
this  provision  had  full  power  to  authorize  voting  out 
of  the  State  for  representatives  of  Congress.  They 
said,  this  power  is  given  by  the  Constitution  of  the 
United  States  to  the  legislature  of  each  State  and  not 
to  a  constitutional  convention.  The  place  of  holding 
the  election  cannot  be  prescribed  as  one  of  the  quali- 
fications of  the  electors. 

"Control  over  the  place  of  voting  is  lodged  in  the 
legislature  by  the  unmistakable  language  of  the  Con- 
stitution, and  cannot,  however  disguised  by  name  or 
circumlocution  of  words,  be  transferred.  The  power  to 
prescribe  the  place,  whether  called  a  qualification,  limita- 
tion, or  condition,  is  still  vested  in  what  the  Constitution 
calls  the  Legislature." 

There  was  an  elaborate  minority  report  holding 
that  the  legislative  act  was  void  in  every  respect, 
and  that  all  votes  cast  under  it  should  be  rejected; 
and  this  report  went  further,  and  held  that  neither 
the  Legislature  nor  Congress  had  power  to  prescribe 
places  of  voting  outside  of  the  State  for  a  portion  of 
its  citizens.  The  report  said,  if  Congress  can  do  this, 
or  the  Legislature  can  do  this,  acting  under  the  power 
of  the  Federal  Constitution,  why  cannot  Congress  or 
the  Legislature  "prescribe  places  of  voting  outside 
of  the  State  for  all  citizens  thereof?  Why  not  pre- 
scribe that  all  the  citizens  of  Michigan  shall  vote  in 
Chicago  for  their  members  of  Congress,  and  all  the 
voters  of  Illinois  go  to  St.  Louis  to  vote  for  theirs?"1 

The  majority  report  was  adopted  by  the  House. 

1  Cases  of  Contested  Election  in  the  House  of  Representatives  from  1865  to 
1871.  House  Mis.  Doc.,  41st  Congress,  2nd  Session,  No.  152,  page  46.  Bartlett, 
Contested  Election  Cases,  Vol.  2,  p.  46. 


CHAPTER  XIII 

KENTUCKY 

SECTION  8,  Article  2  of  the  Constitution  of  Ken- 
tucky, in  force  at  the  time  of  the  war,  provided 
that  the  voter  was  "to  vote  in  said  precinct,  and 
not  elsewhere."  March  11,  1863,  the  Legislature, 
by  a  two-thirds  vote  over  the  veto  of  Governor 
Magoffin,  passed  an  act  entitled,  "Citizens,  expatria- 
tion, and  aliens."  It  provided  that 

"Any  citizen  of  this  State  who  shall  enter  into  the 
service  of  the  so-called  Confederate  States,  in  either  a 
civil  or  military  capacity,  or,  having  heretofore  entered 
into  such  service  of  either  the  Confederate  States  or  pro- 
visional government,  shall  continue  in  such  service  after 
this  act  takes  effect,  or  shall  take  up  and  continue  in  arms 
against  the  military  forces  of  the  United  States  or  the 
State  of  Kentucky,  or  shall  give  voluntary  aid  and  assist- 
ance to  those  in  arms  against  said  forces,  shall  be  deemed 
to  have  expatriated  himself,  and  shall  no  longer  be  a  citi- 
zen of  Kentucky,  nor  shall  he  again  be  a  citizen,  except 
by  permission  of  the  Legislature  by  a  general  or  special 
statute." 

On  February  16,  1864,  the  judiciary  committee  of 
the  Senate  reported  a  bill  "regulating  the  manner  of 
soldiers'  voting  for  electors  of  President  and  Vice- 
president  of  the  United  States  within  and  without 
the  State,"  and  it  was  ordered  to  be  printed. 
On  February  19,  the  bill  was  passed  in  a  new  draft  by 
a  vote  of  29  to  1,  and  sent  to  the  House  where  it 
was  passed  on  February  20. l  This  act  took  effect  on 

1  Senate  Journal,  1864,  pp.  396,  433-436;  House  Journal,  1864,  p.  677. 


106  VOTING  IN  THE   FIELD 

February  22,  1864,  and  was  confined  to  voting  for 
presidential  electors  "at  the  next  election  and  not 
afterwards."  It  provided  that  all  qualified  voters  in 
the  actual  military  service  of  the  State  or  the  United 
States,  either  within  or  without  the  State,  on  the  day 
of  the  next  presidential  election  should  have  the  right 
to  vote  for  electors  at  the  several  posts,  camps  and 
places  where  they  were  in  the  field.  Elections  were 
to  be  held  at  such  places  by  judges,  who  were  to  be 
the  three  ranking  officers  in  the  regiment,  and  the 
soldiers  were  to  vote  in  regiments,  if  possible,  and  if 
not,  in  companies  if  practicable.  There  was  no 
provision  for  individual  voting  or  for  voting  by  proxy. 
The  judges  were  to  appoint  a  qualified  soldier  voter 
to  act  as  clerk  of  the  election.  Both  the  judges  and 
the  clerk  were  to  subscribe  an  oath  to  conduct  the 
election  according  to  law.  There  were  provisions  for 
challenging  of  voters,  and  a  special  provision  that 
order  was  to  be  maintained,  and  that  each  soldier 
should  be  permitted  to  go  to  the  polls  and  vote  with- 
out intimidation  or  restraint  for  the  man  of  his  choice. 
Poll  books  were  to  be  kept  by  the  clerk,  and  a  state- 
ment of  the  vote  was  to  be  signed  and  sent  by  the 
judges  to  the  Governor  and  to  the  Attorney  General. 
The  judges  were  also  to  certify  that  the  election  "was 
free  and  without  any  illegal  constraint  or  force." 
The  Secretary  of  State  was  charged  with  the  duty  of 
providing  proper  blanks;  and  the  act  provided  that 
the  votes  when  received  were  to  be  counted  as  a 
portion  of  the  votes  of  the  State,  "precisely  the  same 
as  those  received  from  the  Board  of  Examiners  of  poll 
books  of  a  county  in  the  State,"  and  said  votes  were  to 
be  in  all  respects  as  legal  and  valid  as  those  for  the 
same  purpose  cast  in  any  precinct  within  the  State.1 

1  Acts  of  Kentucky.  1864,  p.  122. 


KENTUCKY  107 

The  fact  that  soldiers  voted  as  they  pleased,  with- 
out any  undue  influence  of  the  administration,  is 
strikingly  shown  by  the  vote  in  the  field  in  Kentucky 
under  this  bill.  There  were  2,823  votes  for  McClel- 
lan,  and  only  1,194  for  Lincoln  electors.1 

It  is  worthy  of  notice  that  the  Confederate  soldiers 
from  Kentucky  exercised  the  right  of  voting  in  the 
field  outside  of  the  State  of  Kentucky,  without  any 
apparent  authority  therefor  whatever.  The  first  elec- 
tion for  members  of  the  Confederate  Congress  was  in 
the  counties  within  the  lines  of  the  Confederate  army 
in  Kentucky,  and  the  twelve  gentlemen  thus  elected 
took  their  seats  in  the  Congress  of  the  Confederate 
States  at  Richmond,  and  acted  with  that  body  until 
their  successors  were  elected  by  the  Kentucky  troops 
in  the  Confederate  armies,  none  of  such  troops  being 
at  the  time  within  the  boundaries  of  Kentucky.  A 
convention  of  persons  claiming  to  be  delegates  from 
all  the  counties  not  under  the  control  of  the  Federal 
troops  assembled  at  Russellville,  December  18,  1861, 
and  adopted  a  constitution,  and  elected  an  executive 
council  of  ten  persons,  in  whom  their  constitution 
provisionally  vested  all  the  legislative  and  executive 
authority  of  the  State.  This  council  negotiated  an 
alliance  with  the  Confederate  States  for  the  admission 
of  the  State  of  Kentucky  into  the  Confederate  States 
of  America  as  a  member  thereof  on  an  equal  footing 
with  the  other  States  of  the  Confederacy.2 

In  1865  the  Soldiers'  Voting  Act  of  1864  was 
repealed  although  it  was  not  in  effect,  having  been 
limited  to  the  single  election  of  1864.3 

1  Greeley's  Am.  Conflict,  Vol.  2,  p.  672. 

2  Outline  History  of  Kentucky,  Collins,  Vol.  1,  pp.  345-6. 

3  Laws,  Kentucky,  1865,  Ch.  37. 


CHAPTER  XIV 

KANSAS 

THE  Constitution  of  Kansas  at  the  beginning  of 
the  Civil  War  contained  a  provision  that  "no 
soldier,  seaman  or  marine  in  the  army  or  navy  of  the 
United  States  or  of  their  allies  shall  be  deemed  to 
have  acquired  a  residence  in  this  State  in  consequence 
of  being  stationed  within  the  same,  nor  shall  any 
such  soldier,  seaman  or  marine  have  the  right  to 
vote."  When  volunteers  were  called  into  the  service 
in  1861,  it  was  claimed  that  they  were  soldiers  within 
the  meaning  of  this  provision  of  the  Constitution. 
And  it  was  claimed  that  they  were  not  soldiers,  but 
that  the  prohibition  applied  only  to  soldiers  con- 
stituting the  regular  national  military  establishment. 
Some  of  the  ablest  lawyers  of  the  State  were  of  the 
opinion,  which  was  shared  by  the  Governor,  that  the 
prohibition  of  the  Constitution  applied  to  volunteer 
soldiers,  and  included  those  who  volunteered  from 
Kansas.  The  Governor  in  his  message  to  the  Legis- 
lature in  1863,  therefore,  recommended  that  the 
Constitution  be  so  amended  that  it  would  not  pro- 
hibit volunteer  soldiers  from  Kansas  from  voting. 
It  was  a  forced  construction  of  the  provision  to  make 
it  apply  to  volunteer  soldiers  from  Kansas.  It  prob- 
ably was  not  the  intention  of  the  framers  of  the 
Constitution  that  if  a  man  volunteered  he  should 
thereby  lose  his  vote  in  the  State,  which  was  the 
result  of  such  construction.  But  this  construction 
was  applied  in  1863  by  the  Senate  in  a  test  election 
case.  It  appeared  that  twenty-six  volunteer  soldiers 


KANSAS  109 

did  vote  in  Kansas  for  a  candidate  who  was  returned 
as  elected  by  nine  majority,  and  received  a  certificate. 
But  the  Senate  rejected  these  votes  as  being  cast  in 
violation  of  the  provision  of  the  Constitution  pro- 
hibiting soldiers  from  voting,  and  declared  the  other 
candidate  elected  by  a  majority  of  17.  That  is  to 
say,  they  held  that  under  the  Constitution  a  man  who 
volunteered  thereby  lost  his  vote  in  Kansas.1 

A  joint  resolution  proposing  an  amendment  to  the 
Constitution  to  remove  this  difficulty  was  introduced 
in  the  Senate  on  January  17,  1863,  and  referred  to  the 
Comittee  on  the  Judiciary.2  On  January  19,  the 
Committee  reported  the  resolution  and  recommended 
its  passage.3  On  January  23,  the  joint  resolution  was 
read  and  passed  by  a  unanimous  vote  of  24. 

To  amend  the  Constitution  required  that  the 
amendment  should  be  adopted  by  "two-thirds  of  all 
the  members  elected  to  each  House"  and  should  be 
published  in  a  newspaper  in  each  county  of  the  State 
for  "three  months  preceding  the  next  election  for 
representatives,"  and  be  approved  by  a  majority  of 
the  voters  at  such  election. 

This  amendment  had  received  the  votes  of  more 
than  two-thirds  of  all  the  members  elected  to  the 
Senate,  and  went  to  the  House,  where  a  vote  of  two- 
thirds  of  all  the  members  elected  was  50.  On  March 
2,  the  amendment  was  voted  on  in  the  House  and 
received  only  44  votes,  and  was  declared  lost.4  On 
March  3  the  House  voted  to  reconsider  the  vote  by 
which  the  amendment  was  lost,  and  upon  another 
vote  being  taken,  the  result  was  38  yeas,  11  nays  and 
the  amendment  was  finally  lost.5 


1  House  Journal,  1863,  pp.  99,  100.  4  House  Journal,  1863,  p.  358. 

2  Senate  Journal,  1863,  p.  23.  6  Ibid.,  pp.  366-7. 

3  Ibid.,  p.  i8. 


110  VOTING  IN  THE  FIELD 

In  1864,  the  Governor  again  referred  to  the 
subject  in  his  message,  as  follows:- 

"I  recommended  in  my  first  annual  message  to  the 
Legislature  an  amendment  to  the  Constitution  giving  to 
the  soldiers  the  right  to  vote.  This  recommendation 
failed.  I  heartily  renew  it,  and  trust  it  will  be  acted  on 
promptly." 

He  alluded  to  the  fact  that  many  of  the  ablest  jurists 
of  the  State  thought  that  an  amendment  to  the 
Constitution  was  necessary,  and  said  that  such  was 
his  own  belief. 

"Still,"  he  said,  "if  the  Legislature,  after  due  delibera- 
tion shall  conclude  either  that  the  right  exists,  or  that  it 
has  power  to  confer  that  right,  I  shall  gladly  second  its 
action.  .  .  .  There  is  no  fear,  and  there  should  be  no 
anxiety,  on  the  part  of  legislators  on  this  subject,  for 
wherever  through  State  laws  our  brave  men  in  the  field 
have  voted,  they  have  voted  almost  unanimously  for  the 
vigorous  prosecution  of  the  war."  l 

To  remove  the  doubt,  an  amendment  to  the 
Constitution  was  proposed  by  the  Legislature,  and 
the  soldiers'  voting  act  was  passed  at  the  January 
session,  1864.  The  result  was  that  the  people  voted 
on  the  amendment  which  permitted  the  act,  and  the 
soldiers  voted  in  the  field  under  the  act  on  the  day 
of  general  election,  which  was  on  the  Tuesday  follow- 
ing the  first  Monday  in  November,  1864.  But  the 
canvass  of  the  votes  cast  in  the  field  was  by  the 
provisions  of  the  act  made  on  the  third  Monday  of 
December,  and  the  result  of  the  canvass  and  the 
election  then  declared. 

A  joint  resolution  to  amend  the  Constitution  was 
introduced  in  the  House  and  read  a  first  time  on  the 


1  House  Journal.  1864,  p.  40. 


KANSAS  111 

sixteenth  of  January,  and  referred  to  the  Committee 
on  Elections,  which  reported  recommending  its  passage 
on  January  18.1 

On  January  18,  1864,  that  portion  of  the  Gover- 
nor's message  relating  to  soldiers'  suffrage,  which 
included  the  amendment  and  the  soldiers'  voting  bill 
as  well,  was  referred  to  the  Committee  on  the  Judi- 
ciary in  the  Senate.2  On  January  20,  the  amend- 
ment was  considered  in  the  Senate; 3  and  on  the 
same  day  it  was  amended  by  adding  to  it,  "But 
nothing  herein  contained  shall  be  deemed  to  allow 
any  soldier,  seaman  or  marine  in  the  regular  army  or 
navy  of  the  United  States  the  right  to  vote.  On 
January  21,  the  bill  was  passed  in  the  Senate  by  a 
unanimous  vote  of  twenty -five  members,  and  sent  to 
the  House.4 

On  January  18,  the  Committee  on  Elections  in  the 
House  reported  the  amendment  and  recommended 
that  it  be  printed.5  On  January  19,  the  resolution 
was  made  a  special  order  for  two  weeks  from  that 
day.  On  January  22,  the  amendment  which  had 
been  adopted  in  the  Senate  was  received  by  the 
House  and  read  a  first  time.6  In  the  afternoon  of 
the  same  day  the  amendment  was  read  a  second  time 
and  referred  to  the  Committee  on  the  Judiciary.7  On 
February  2  the  House  resolution  to  amend  the 
Constitution  was  considered  in  connection  with  the 
bill  for  soldiers'  voting  in  the  field.8  On  February 
3,  the  Judiciary  Committee  reported  the  Senate's 
resolution  with  an  amendment,  providing  that  the 
words,  "nor  while  a  student  of  any  seminary  of 


1  House  Journal,  1864,  p.  78.  B  House  Journal,  1864,  p.  90. 

1  Senate  Journal,  1864,  p.  56.  •  Ibid.,  p.  138. 

3  Ibid.,  pp.  64-66.  7  Ibid.,  p.  148. 

4  Ibid.,  p.  72.  8  Ibid.,  p.  230. 


112  VOTING  IN  THE  FIELD 

learning,  nor  while  kept  in  any  almshouse  or  other 
asylum  at  public  expense,  nor  while  confined  in  any 
public  prison,"  and  the  words  that  "nothing  herein 
contained  shall  be  deemed  to  allow  any  soldier,  sea- 
man or  marine  in  the  army  or  navy  of  the  United 
States,  the  right  to  vote,"  be  stricken  out,  and  the 
resolution  be  passed  as  amended.1  On  February  9, 
the  House  resolution  for  amendment  was  under 
consideration  2  and  on  February  11,  was  adopted  in 
the  House  by  vote  of  55  yeas  to  one  nay.  In  the 
afternoon  of  the  same  day  the  House  spent  some  time 
upon  the  matter  in  a  Committee  of  the  Whole,  the 
result  of  which  was  that  they  reported  back  that 
the  House  resolution  be  indefinitely  postponed,  and 
recommended  that  the  Senate  joint  resolution  to 
amend  the  Constitution,  be  adopted  as  amended,  and 
the  same  was  adopted  by  a  unanimous  vote,  and  the 
Senate  was  then  notified  thereof  on  February  12.3 

On  the  same  day  the  Senate  voted  to  permit  the 
House  to  withdraw  the  Senate  joint  resolution  and 
amendments.  It  is  a  little  difficult  to  ascertain  from 
the  Journals  of  the  two  Houses  precisely  what  was 
afterwards  done  about  the  joint  resolution  to  amend 
the  Constitution,  but  the  amendment  as  finally 
adopted  was  a  substitute  for  Section  3,  Article  5,  of 
the  Constitution,  and  provided  that 

"For  the  purpose  of  voting,  no  person  shall  be  deemed 
to  have  gained  or  lost  a  residence  by  reason  of  his  presence 
or  absence  while  employed  in  the  service  of  the  United 
States,  nor  while  engaged  in  the  navigation  of  the  waters 
of  this  State  or  of  the  United  States  or  of  the  high  seas, 
nor  while  a  student  of  any  seminary  of  learning,  nor  while 
kept  at  any  almshouse  or  other  asylum  at  public  expense, 

1  House  Journal,  1864,  p.  5233.  *  Ibid.,  p.  289. 

8  House  Journal,  1864,  312,  313;   Senate  Journal,  1864,  p.  222. 


KANSAS  113 

nor  while  confined  in  any  public  prison;  and  the  Legisla- 
ture may  make  provision  for  taking  the  votes  of  electors 
who  may  be  absent  from  their  townships  or  wards,  in  the 
volunteer  military  service  of  the  United  States,  or  the 
militia  service  of  this  State;  but  nothing  herein  contained 
shall  be  deemed  to  allow  any  soldier,  seaman  or  marine 
in  the  regular  army  or  navy  of  the  United  States  the 
right  to  vote."  l 

The  amendment  was  submitted  to  the  people  for 
their  approval  or  rejection  at  the  November  general 
election  of  1864,  and  adopted  by  a  vote  of  10,756  for 
it  and  329  against  it.  So  much  for  the  amendment 
to  the  Constitution. 

The  bill  to  permit  soldiers  to  vote  in  the  field  was 
introduced  in  the  House  on  January  26,  after  the 
Senate  had  passed  a  resolution  to  amend  the  Con- 
stitution.2 On  January  27,  the  bill  was  referred  to 
the  Committee  on  Elections.3  On  January  20,  the 
committee  reported  the  bill  without  recommendation, 
except  that  it  be  printed.4  On  February  2  a  resolu- 
tion was  offered  in  the  House  that  "a  committee  of 
five  on  the  part  of  the  House  and  three  on  the  part 
of  the  Senate  be  appointed  to  determine,  prepare  and 
recommend  the  necessary  legislation  to  enable  our 
volunteer  soldiers  in  the  service  of  the  United  States 
to  vote,  and  report  by  bill,  or  otherwise  on  or  before 
the  tenth  of  this  month."  5  On  February  5,  the 
soldiers'  voting  act  was  passed  by  a  unanimous  vote 
of  60.6 

The  Senate  was  notified  on  February  6  of  the 
passage  of  the  bill  by  the  House.7  On  February  8, 


1  Laws  of  Kansas,  1864,  Chapter  45.  6  Ibid.,  p.  230,  p.  262. 

2  House  Journal,  1864,  p.  169.  6  Ibid.,  p.  268. 

3  Ibid.,  p.  178.  7  Senate  Journal,  1864,  p.  170. 

4  Ibid.,  p.  200. 


114  VOTING  IN  THE  FIELD 

the  bill  was  referred  to  the  Committee  on  the  Judi- 
ciary.1 On  February  9  the  committee  reported  the 
bill  and  recommended  its  passage  and  that  it  be 
printed.2  On  February  13,  a  select  committee  to 
whom  the  bill  had  been  referred  recommended  its 
passage  with  an  amendment,  which  was  to  add  a 
section  providing  that  the  votes  cast  under  the  act 
at  the  elections  in  1864  should  not  be  canvassed  or 
counted  as  provided  for  in  the  act  "unless  it  appeared 
that  a  majority  of  the  qualified  electors  within  the 
State  approved  the  act  at  said  election." 3  On 
February  15,  the  bill  and  amendment  were  referred 
to  the  Committee  of  the  Whole.4  On  the  same  day 
the  bill  was  considered  by  the  committee,  and  re- 
ported back  to  the  Senate  with  the  recommendation 
that  it  be  referred  to  the  Committee  on  the  Judiciary, 
and  that  they  be  requested  to  procure  the  opinion  of 
the  Attorney  General  as  to  the  constitutionality  of 
the  bill.8  On  February  25  an  opinion  was  received 
from  the  Attorney  General  pronouncing  the  bill 
constitutional.6  On  February  26  an  amendment  was 
offered  to  the  bill  providing  that  votes  cast  under  it 
in  1864,  should  not  be  canvassed  or  counted,  unless 
the  constitutional  amendment  should  be  approved 
by  the  voters  at  the  same  election.  This  amendment 
was  not  adopted,  and  the  report  of  the  Committee 
of  the  Whole  was  agreed  to.  On  February  27  the 
bill  was  passed  by  a  yea  and  nay  vote  of  17  to 
5.  The  minority  placed  upon  the  records  their 
reasons  for  voting  against  the  bill,  which  were  that 
if  passed  it  would  be  unconstitutional,  because  the 
Constitution  made  it  necessary  for  the  elector  to  vote 


1  Senate  Journal,  1864,  p.  181.  4  Ibid.,  p.  241. 

*  Ibid.,  p.  186.  *  Ibid.,  p.  242. 

1  Ibid.,  p.  230.  •  Ibid.,  p.  413. 


KANSAS  115 

in  the  township  or  ward  in  Kansas  where  he  resided, 
and  also  because  the  Constitution  provided  that  no 
soldier  or  marine  should  have  the  right  to  vote,  and 
the  persons  indicated  in  the  bill  were  soldiers  in  the 
judgment  of  the  minority.1  So  that  the  result  was 
that  the  Constitution  was  amended  by  unanimous 
vote  in  both  branches  of  the  Legislature  and  the 
soldiers'  voting  bill  was  passed  by  a  unanimous  vote  in 
the  House  and  by  a  vote  of  17  to  5  in  the  Senate. 

The  soldiers'  voting  act  took  effect  March  5, 
1864,  upon  its  publication  in  the  Topeka  Tribune. 
It  provided  that  qualified  electors  of  Kansas  who 
might  at  the  time  of  any  annual  election  be  absent 
from  their  township  or  ward,  employed  in  the  militia 
or  volunteer  military  service  of  the  State  or  of  the 
United  States,  might  vote  for  county,  district  and 
state  officers,  members  of  the  Legislature,  members  of 
Congress  and  presidential  electors,  wherever  they 
might  be  stationed  on  the  day  of  such  election,  under 
the  regulations  of  the  act.  The  act  then  provided 
that  the  Secretary  of  State  should  prepare  poll  books, 
in  a  prescribed  form,  that  the  Governor  should  employ 
some  suitable  person  to  deliver  duplicate  copies  of 
the  poll  books  to  the  commanders  of  the  battalions, 
companies  or  squads  at  least  ten  days  prior  to  the 
election,  and  that  the  delivery  might  be  by  mail  or 
express,  or  "such  other  means  as  would  be  most  eco- 
nomical to  the  State."  That  the  soldier  electors 
might  assemble  at  such  place  as  might  be  appointed 
by  the  commandant  or  "otherwise  agreed  upon," 
and  proceed  to  elect  three  judges  and  two  clerks  to 
hold  the  election.  These  judges  and  clerks  were  to 
take  an  oath  to  properly  conduct  the  election  accord- 


1  Senate  Journal,  1864,  p.  423. 


116  VOTING  IN  THE  FIELD 

ing  to  the  statute,  and  the  election  was  then  to  be 
held  in  the  following  manner:  Each  soldier  was  "in 
full  view  to  deliver  to  one  of  the  judges  a  single 
ballot  or  piece  of  paper,  on  which  should  be  written 
or  printed  the  county,  township  or  ward  and  repre- 
sentative district  of  which  he  was  a  resident,  and  the 
company  and  regiment  of  which  he  was  a  member, 
all  of  which  should  be  exposed  to  view."  The  ballot 
should  also  contain  the  names  of  the  persons  voted 
for,  with  the  designation  of  the  office  for  which  they 
were  voted,  which  might  be  "exposed  or  concealed 
at  the  option  of  the  soldier,"  but  if  concealed  the 
judges  should  not  inspect  it.  The  judges  should 
announce  "in  an  audible  voice  the  name  of  the  voter, 
his  residence,  company  and  regiment,"  and  if  no 
objection  was  made,  and  the  judges  were  satisfied 
that  he  was  a  qualified  elector,  as  represented  by 
his  ballot,  the  vote  should  be  set  down  in  the 
poll  book,  and  the  ballot  deposited  in  the  ballot 
box.  At  the  close  of  the  polls,  the  votes  were  to 
be  counted  as  follows:  —  One  of  the  judges  should 
"in  the  presence  of  all  the  others  open  the  ballot 
box  and  take  therefrom  a  single  ballot  which  he 
should  read.  The  clerks  were  then  to  record  the 
vote  as  read."  The  votes  were  then  to  be  certified, 
and  attached  together,  sealed  up  in  separate  envel- 
opes according  to  the  counties  for  which  they  were 
cast,  and  endorsed  with  "A  certified  record  of  an  elec- 
tion of  citizens  of  Kansas  in  military  employment, 
held  at  etc."  One  of  the  packages  so  endorsed  was 
to  be  transmitted  to  the  Secretary  of  State,  and  the 
other,  with  the  votes  cast,  was  to  be  retained  by 
one  of  the  judges.  The  act  then  made  it  the  duty 
of  the  Secretary  of  State  to  open  the  returns  and 
to  record  all  votes  cast  for  state  officers,  members 


KANSAS  117 

of  Congress  or  electors,  and  file  the  records  in  his 
office.1 

The  vote  of  soldiers  in  the  field  from  Kansas  in 
1864,  was  2,867  for  Lincoln,  and  543  for  McClellan, 
total,  3,410,  or  more  than  11  per  cent  of  the  total 
vote  of  the  State  which  was  20,122. 

The  soldiers'  voting  act  was  retained  in  the 
General  Statutes  of  1868  as  Chapter  36,  Article  4,  and 
is  now  sections  3154-3165  of  the  Kansas  Statutes  of 
1909. 


1  Laws  of  Kansas,  1864,  p.  101. 


I 


CHAPTER  XV 

MAINE 

N  Maine,  the  Constitution  in  force  at  the  outbreak 
of  the  Civil  War  provided  that 


"Every  male  citizen  of  the  United  States  of  the  age 
of  21  years  and  upwards  .  .  .  having  his  residence  estab- 
lished in  this  State  for  the  term  of  three  months  next 
preceding  any  election,  shall  be  an  elector  for  Governor, 
Senators,  and  Representatives  in  the  town  or  plantation 
where  his  residence  is  so  established,  and  the  elections 
shall  be  by  written  ballot."  l 

Section  5  of  Article  IV  also  provided  that  repre- 
sentatives and  senators  should  be  chosen  at  meetings 
"within  this  State"  and  that  the  votes  should  be  re- 
ceived, counted  and  declared,  and  a  record  thereof  made 
in  open  town  meeting.  This,  of  course,  prescribed  the 
place  and  manner  of  voting  so  that  an  amendment  of 
the  Constitution  was  necessary  to  enable  the  Legisla- 
ture to  pass  a  soldiers'  voting  bill  for  voting  out  of  the 
State.  In  January,  1863,  the  Governor  recommended 
legislative  provision  for  allowing  soldiers  to  vote  out  of 
the  State.  He  said :  - 

"In  several  of  our  sister  States  provision  has  been 
made  for  allowing  those  absent  as  soldiers  in  the  Union 
Army  to  vote  at  the  general  election.  I  think  this  prac- 
tice is  wise,  expedient  and  just.  It  would  seem  absolutely 
unfair  and  unequal  that  those  who  are  periling  so  much 
for  the  common  weal  should  be  deprived  in  the  slightest 

1  Section  1,  Article  II,  Constitution  of  Maine. 


MAINE  119 

degree  of  the  common  benefits  and  common  privileges  of 
the  citizen.  We  all  owe  an  immeasurable  debt  of  grati- 
tude to  those  who  are  battling  in  the  field  for  our  civil 
rights  and  our  nationality;  and  it  certainly  becomes  us  to 
manifest  our  appreciation  of  their  heroic  devotion  and 
patriotism,  not  by  mere  words  of  eulogy  or  thanks,  but 
by  substantial  tokens  of  our  sympathy  and  our  regard. 
I  recommend,  therefore,  that  adequate  provision  be  made 
for  allowing  our  soldiers  to  vote  while  in  service;  and  if 
the  extension  of  this  privilege  should  even  require  a  change 
in  our  State  Constitution,  it  would,  I  think,  be  wise  to 
make  it.  This  necessity  might  involve  delay,  but  it 
would  have  a  compensating  advantage  in  the  fact  that 
the  change,  when  made,  would  embody  the  direct  will  of 
the  people  and  would  have  the  stability  of  organic  law."  l 

To  amend  the  Constitution  required  that  two- 
thirds  of  both  Houses  of  the  Legislature  should  agree 
upon  an  amendment  and  submit  the  same  to  the 
people,  and  if  a  majority  of  the  voters  were  in  favor 
of  such  an  amendment  it  became  a  part  of  the  Con- 
stitution. 

On  January  15,  1863,  a  joint  select  committee  on 
extending  the  right  of  suffrage  to  soldiers,  as  recom- 
mended by  the  Governor,  was  appointed.  On  March 
23rd,  this  committee  reported  resolves  providing  for 
an  amendment  to  the  Constitution  relating  to  the 
elective  franchise.  That  report  was  accepted,  and 
the  resolves  were  referred  to  the  Committee  on  the 
Judiciary,  which  did  not  report  upon  the  resolves, 
and  they  are  entered  in  the  Senate  Journal  as 
"Resolves  not  passed."  2  This  ended  proceedings  for 
soldiers'  voting  in  1863. 

At  the  session  of  the  Legislature  in  March,  1864,  the 
Governor  again  recommended  legislation  as  follows :  — 


1  Senate  Journal,  1863,  pp.  15-16.  *  Ibid.,  pp.  64,  265. 


120  VOTING  IN  THE  FIELD 

"The  justice  of  extending  to  our  citizen  soldiers  in 
the  field  an  opportunity  for  exercising  the  right  of  suf- 
frage in  our  elections  has  been  considerably  discussed  and 
generally  conceded.  The  experience  of  other  States  goes 
fully  to  establish  the  fact  that  the  votes  of  the  soldiers 
may  be  so  taken  as  to  preclude  either  fraud  or  abuse 
upon  the  elective  franchise.  Because  a  man  for  the  time 
being  becomes  a  soldier  in  defence  of  all  that  is  dear  to 
the  citizen,  his  interest  in  the  welfare  of  the  state  and 
nation  is  neither  changed  nor  diminished  but  rather  aug- 
mented and  intensified  by  his  consecration  of  himself  at  the 
peril  of  his  life  to  their  service.  Why,  then,  should  he 
not  be  permitted,  wherever  he  may  be,  upon  the  happen- 
ing of  an  election  at  his  home,  to  enjoy  the  consideration 
of  a  citizen,  and  cast  his  ballot?  And  why  should  he  be 
denied  the  privilege  of  helping  to  shape  the  policy  of  the 
government  in  which  his  interest  is  not  less  than  that  of 
those  remaining  securely  at  their  firesides?  On  the  return 
of  the  soldier  to  his  home  he  finds  himself  in  possession 
of  all  the  political  rights  he  ever  enjoyed.  These  do  not 
become  changed  even  by  a  three-years'  absence. 

"To  secure  to  him  during  this  absence  the  exercise  of 
the  highest  of  these  rights  was  the  subject  of  favorable 
recommendation  in  the  annual  message  of  my  prede- 
cessor. It  did  not  come  up  for  action  in  the  Legislature 
until  a  late  day,  when  it  failed  not  for  want  of  friends  to 
the  object,  but  because  of  objection  to  the  particular 
form  in  which  it  was  presented;  and  in  the  great  hurry 
incident  to  the  closing  days  of  the  session,  there  was  not 
time  to  mature  the  requisite  bill  and  resolutions  to 
accomplish  it. 

"As  to  the  precise  mode  by  which  the  end  is  to  be 
attained,  the  large  amount  of  legal  learning  which  your 
several  bodies  comprise  will  doubtless  enable  you  to  frame 
and  adopt  such  resolutions  and  bill  as  will  extend  fully 
the  right  of  suffrage  to  the  soldier  in  the  field,  as  will 
guard  well  the  elective  franchise  from  abuse,  and  at  the 


same  time  meet  all  constitutional  requirements.  So  many 
thousands  of  our  fellow-citizens  volunteering  to  leave  home 
and  friends  and  the  comforts  of  peaceful  life  to  defend 
our  common  rights,  I  cannot  doubt  will  be  enabled  by 
you,  sanctioned  by  the  cooperation  of  the  people,  to  cast 
their  votes  for  President  of  the  United  States  in  the  elec- 
tion which  is  to  take  place  in  November  next."  * 

Petitions  were  also  received  from  citizens  asking  for 
immediate  action  upon  the  matter  of  allowing  soldiers 
to  vote,  and  on  March  16th,  the  Committee  on  the 
Judiciary  reported:  "Resolves  relating  to  amendment 
of  the  Constitution  so  as  to  allow  soldiers  to  vote 
in  the  field  for  State  officers,"  and  on  March  24,  these 
resolves  were  adopted  by  a  unanimous  vote.2  The 
resolves  were  submitted  to  the  people  on  the  second 
Monday  of  September,  1864,  and  adopted  by  a  very 
large  majority;  the  returns  from  475  cities,  towns 
and  plantations,  comprising  nearly  the  whole  State, 
were,  Yeas,  64,450,  Nays,  19,127,  making  a  majority 
in  favor  of  the  amendment  of  45,303. 

In  the  town  of  Alfred,  the  vote  was  150  for 
the  amendment  and  150  against  it,  while  in  Dayton, 
Newfield,  North  Berwick,  Parsonsfield,  Sanford  and 
Waterboro  there  were  large  majorities  against  the 
amendment.  There  were  no  majorities  against  the 
amendment  except  in  Democratic  towns. 

On  March  21,  1864,  the  Judiciary  Committee  re- 
ported: "An  Act  authorizing  soldiers  absent  from  the 
State  in  the  military  service  to  vote  for  electors  of  Pres- 
ident and  Vice-president,  and  for  representatives  in 
Congress;  also  regulating  the  manner  of  electing  reg- 


1  Documents  printed  by  order  of  the  Legislature  of  the  State  of  Maine, 
1864.     Pp.  22-23  of  "Address  of  Governor  Cony  to  the  Legislature  of  the  State 
of  Maine,  January  7,  1864." 

2  Senate  Journal,  1864,  pp.  256,  297. 


122  VOTING  IN  THE  FIELD 

isters  of  deeds,  county  treasurers  and  county  com- 
missioners, so  that  such  soldiers  may  be  allowed  to 
vote  therefor."  This  was  laid  on  the  table  and  350 
copies  ordered  to  be  printed.  On  March  22nd,  the 
act  was  passed,  and  took  effect  March  25,  1864.1  It 
provided  that  all  citizens  absent  from  the  State  in  the 
military  service  of  the  United  States  or  of  the  State, 
and  not  in  the  regular  army  of  the  United  States, 
should  be  allowed  to  vote  for  presidential  electors 
and  for  representatives  to  Congress  in  all  elections 
of  those  officers  thereafter  occurring.  The  act  then 
provided  that  "on  the  day  of  election  a  poll  shall 
be  opened  at  every  place  without  this  State  where  a 
regiment,  battalion,  battery,  company  or  detachment 
of  not  less  than  twenty  soldiers  from  the  State  of 
Maine  may  be  found  or  stationed."  The  vote  was 
to  be  taken  by  regiments  when  it  could  be  done,  and 
when  not  convenient  any  part  of  a  regiment  not  less 
than  twenty  in  number  should  be  entitled  to  vote 
wherever  they  might  be.  The  three  ranking  officers 
of  such  regiment,  battalion,  battery  or  company, 
acting  as  such  on  the  day  of  election,  were  made 
"supervisors"  of  elections.  If  there  were  no  such 
officers,  then  three  non-commissioned  officers,  accord- 
ing to  their  seniority  were  to  be  such  supervisors. 
If  any  officer  should  neglect  or  refuse  to  act,  the  next 
in  rank  should  be  supervisor,  and  in  case  there  were 
no  officer  present,  or  if  they  all  refused  to  act,  the 
soldiers  (not  less  than  twenty)  might  choose  by  writ- 
ten ballot  enough  of  their  own  number,  not  exceeding 
three,  and  those  persons  should  be  supervisors.  All 
supervisors  were  to  be  first  sworn  to  support  the  Consti- 
tution of  the  United  States  and  of  the  State  of  Maine, 


1  Senate  Journal,  1864,  pp.  277,  284,  306. 


MAINE  123 

and  to  faithfully  and  impartially  perform  their  duties. 
The  polls  were  to  be  opened  and  closed  at  such  hours 
as  the  supervisors  might  direct,  provided  that  due 
notice  and  sufficient  time  was  given  for  all  the  voters 
to  vote.  The  supervisors  of  elections  were  "to  pre- 
pare a  ballot  box,  or  other  suitable  receptacle  for  the 
ballots."  Upon  every  ballot  was  to  be  printed  or 
written  the  name  of  the  county,  and  also  of  the  city 
or  town  in  which  was  the  residence  of  the  person 
proposing  to  vote,  and  upon  the  other  side  were  to  be 
the  names  of  the  persons  voted  for.  Before  receiving 
any  vote  the  supervisors  were  required  to  be  satis- 
fied of  the  age  and  citizenship  of  the  person  claim- 
ing to  vote,  and  that  he  had  in  fact  a  residence  in 
the  city  or  town  and  county  which  was  written  or 
printed  on  the  vote  offered  by  him. 

If  the  right  of  any  one  offering  to  vote  was  chal- 
lenged, the  supervisors  might  require  him  to  make 
answers  upon  oath  to  all  interrogatories  touching  his 
right  to  vote,  and  they  were  required  to  hear  any  other 
evidence  by  him  or  by  those  who  challenged  his  vote. 
The  supervisors  were  to  keep  correct  poll-lists  of 
the  names  of  all  persons  allowed  to  vote,  and  of  their 
respective  residences,  and  also  of  the  number  of  the 
regiment,  company  or  battery  to  which  they  belonged, 
and  the  names  of  the  voters  were  to  be  entered 
thereon  by  counties.  The  lists  were  then  to  be  certi- 
fied by  the  supervisors  to  be  correct.  The  supervisors 
were  to  check  the  name  of  every  person  before  he  was  al- 
lowed to  vote,  and  the  check  mark  was  "to  be  plainly 
made  against  his  name  on  the  poll-lists."  Finally,  they 
were  to  "sort,  count  and  publicly  declare  the  votes  at 
the  head  of  their  respective  commands  on  the  day  of 
election,  unless  prevented  by  the  public  enemy,  and  in 
that  case  as  soon  thereafter  as  might  be." 


124  VOTING  IN  THE   FIELD 

They  were  then  to  prepare  lists  of  the  persons 
voted  for,  with  the  number  of  votes  for  each  person 
against  his  name,  and  sign  and  seal  up  such  list  and 
cause  the  same,  together  with  the  poll-lists,  to  be 
delivered  into  the  office  of  the  Secretary  of  State. 
These  votes  were  to  be  canvassed  and  counted  by 
the  Governor  and  Council  with  the  other  votes  for 
the  same  offices,  and  the  result  declared. 

These  provisions  were  first  made  applicable  to  the 
election  of  presidential  electors,  and  then  by  a  separate 
section  in  the  act  it  was  provided  that  soldiers  should 
be  allowed  to  vote  for  representatives  in  Congress, 
and  each  was  to  be  considered  as  voting  in  the  city, 
town  or  plantation  and  representative  district  where 
he  resided  when  he  entered  the  service.  The  elections 
for  this  purpose  were  to  be  held  at  the  same  times  and 
places,  and  conducted  under  the  same  regulations  as 
provided  by  the  act  for  voting  for  presidential  electors. 

Then  the  act  contained  a  provision  that  "in  case 
the  Constitution  of  this  State  shall  be  so  amended 
at  the  annual  election  to  be  held  on  the  second  Mon- 
day of  September  next  as  to  allow  such  citizens  to  vote 
for  Governor,  Senators  and  other  officers  at  the  times 
and  in  the  manner  provided  in  the  resolves  passed 
by  the  present  Legislature,  proposing  an  amendment 
to  the  Constitution  for  that  purpose,"  then  all  such 
citizens  desiring  to  vote  should  present  but  one  ballot 
on  which  should  be  printed  or  written  the  names  of 
all  the  candidates  voted  for  except  presidential  elec- 
tors which  should  be  borne  on  a  separate  ballot. 
There  were  further  provisions  for  the  counting  of  the 
votes  and  declaring  elections,  etc.,  and  finally  the 
act  provided  that  the  Secretary  of  State  should 
seasonably  prepare  and  deliver  to  each  regiment  and 
battery  without  the  State,  poll-lists  and  forms  for 


MAINE  125 

returns  of  votes  in  conformity  with  the  provisions  of 
the  act  and  with  the  amendment  of  the  Constitution 
in  case  the  same  should  be  adopted  and  "this  act 
and  said  amendments,  if  adopted,  shall  be  printed  in 
each  poll-list  so  delivered."  1 

The  amendment  for  voting  in  the  field  for  State 
officers  provided  that  "citizens  of  Maine  absent  on 
military  service  of  the  United  States  or  of  the  State 
and  not  in  the  regular  army  of  United  States,  being 
otherwise  qualified  electors,  shall  be  allowed  to  vote 
on  the  Tuesday  next  after  the  first  Monday  of 
November,  1864,  for  Governor  and  State  Senators, 
and  their  votes  shall  be  counted  and  allowed  in  the 
same  manner  and  with  the  same  effect  as  if  given  on 
the  second  Monday  of  September  in  1864,  and  that 
they  shall  be  allowed  to  vote  for  Governor  and 
Senators  and  Representatives  on  the  second  Monday 
of  September  annually  thereafter  forever  in  the 
manner  herein  provided." 

The  manner  provided  was  very  fully  set  forth  in 
the  amendment.  It  required  that  three  ranking 
officers  of  each  regiment  or  company  should  be 
supervisors  of  elections,  and  if  there  were  no  officers 
then  three  non-commissioned  officers,  according  to 
their  seniority.  And  if  there  were  no  officers  or  non- 
commissioned officers  present,  or  if  they  refused  to 
act,  the  voters,  not  less  than  twenty  in  number,  might 
choose  by  written  ballot,  enough  of  their  own  number 
as  supervisors.  It  required  the  polls  to  be  opened 
and  closed  at  such  hours  as  the  supervisors  should 
direct,  provided  due  notice  and  sufficient  time  should 
be  given  for  all  voters  in  the  regiment  or  company 
to  vote.  It  provided  for  proper  ballot  boxes,  and  that 


Acts  and  Resolves  of  Maine,  1864,  p.  209. 


126  VOTING  IN  THE  FIELD 

on  one  side  of  every  ballot  should  be  printed  or 
written  the  name  of  county  and  of  the  city  or  town  in 
which  the  person  resided,  and  on  the  other  side  the 
names  of  the  persons  to  be  voted  for,  and  the  office 
which  they  were  intended  to  fill.  It  also  provided 
that  if  the  right  to  vote  was  challenged  the  supervisors 
might  require  him  to  make  true  answers  to  all  inter- 
rogatories upon  the  subject,  and  should  hear  any  other 
evidence  offered  by  him  or  by  those  who  challenged 
his  right.  The  amendment  then  provided  for  keeping 
poll-lists  of  persons  allowed  to  vote,  and  for  counting 
and  making  public  declaration  of  the  votes  at  the 
heads  of  the  respective  commands  on  the  day  of  the 
election  or  as  soon  thereafter  as  possible.  The  poll- 
lists  were  then  to  be  sealed  and  sent  to  the  Secretary 
of  State. 

The  amendment  after  having  thus  fully  provided 
for  soldiers'  voting  in  the  field,  provided  that  the 
State  might  "pass  any  law  additional  to  the  foregoing 
provisions,  if  any  shall,  in  practice,  be  found  neces- 
sary in  order  more  fully  to  carry  into  effect  the 
purpose  thereof."  This  Amendment  is  Section  4,  of 
Article  II  of  the  present  Constitution. 

Another  amendment  also  provided  for  voting  in 
the  field  for  judges,  registers  of  probate,  sheriffs, 
and  all  other  county  officers.  This  Amendment  is 
Section  12  of  Article  IX  of  the  present  Constitution. 

It  will  be  observed  that  this  constitutional  amend- 
ment does  not  carry  the  right  to  vote  for  presidential 
electors  or  members  of  Congress,  but  deals  only  with 
electing  certain  State  officers. 

The  net  result  was  that  the  Constitution  was 
amended  to  permit  soldiers  to  vote  in  the  field  as 
to  certain  state  officers,  and  a  law  was  enacted  to 
permit  them  to  vote  in  the  field  for  represen- 


MAINE  127 

tatives  in  Congress  and  presidential  electors.  The 
distinction  was  obviously  made  which  the  Supreme 
Court  of  Vermont  made  in  their  opinion  on  the 
validity  of  the  soldiers'  voting  bill,  to  wit:  that 
State  Constitutions  which  were  silent  upon  the  sub- 
ject of  voting  for  electors  and  representatives  did 
not  prevent  the  legislators  from  providing  that  such 
officers  should  be  voted  for  at  any  place  or  time  that 
they  saw  fit. 

The  soldiers'  vote  in  the  field  in  1864  was  4,174 
for  Lincoln,  and  741  for  McClellan,1  a  total  of  only 
4,915,  or  about  4j  per  cent  of  the  total  vote  of  the 
State,  which  was  106,014. 

The  provisions  of  the  soldiers'  voting  act  of  1864, 
are  now  Sections  133-4-5  and  -6,  Chapter  6,  Revised 
Statutes  of  Maine,  1903. 


Greeley's  American  Conflict,  Vol.  2,  p.  672. 


CHAPTER  XVI 

CALIFORNIA 

THE  only  overland  connection  between  California 
and  the  other  Union  States  during  the  Civil  War 
was  by  the  Overland  Mail  route,  a  distance  of  about 
twenty-seven  hundred  miles.  As  a  trip  by  this  line 
took  about  a  month  the  California  troops  were  nearly 
all  on  duty  in  the  territories  and  on  the  border. 

A  soldiers'  voting  Act  was  prepared  to  give  them 
the  right  to  vote  in  the  field  in  1864. 

A  bill  was  introduced  in  the  House  on  March  3, 
1864,  "To  provide  for  the  support  of  the  privilege 
of  free  suffrage  during  the  continuance  of  the  war." 
On  March  15,  the  bill  was  reported  from  the  Com- 
mittee, the  rules  were  suspended  and  the  bill  passed. 

On  March  26,  the  Senate  passed  the  House  Bill 
under  suspension  of  the  rules,  by  a  vote  of  32  to  6.1 
It  took  effect  April  1, 1864,  and  required  the  Adjutant 
General  to  make  a  list  of  all  electors  in  the  military 
service  of  the  United  States  before  the  second  Tuesday 
of  June,  1864,  and  to  deliver  it  to  the  Secretary  of 
State;  required  the  Secretary  of  State  to  classify  or 
arrange  the  list  making  therefrom  separate  lists  of  all 
electors  in  each  regiment,  squadron  and  battery, 
specifying  the  name,  residence  and  regiment  and 
rank  of  each  elector,  and  also  the  county,  congres- 
sional, senatorial  and  assembly  district  for  the  officers, 
for  which  the  elector  was  by  the  act  entitled  to  vote. 

1  House  Journal,  1864,  p.  447;  Senate  Journal,  1864,  pp.  545,  546. 


CALIFORNIA  129 

The  election  was  to  be  held  under  the  charge  of 
the  three  highest  officers,  who  were  to  be  sworn  to 
the  faithful  performance  of  their  duties  under  the 
act.  The  votes  were  to  be  certified,  sealed  up  and 
transmitted  to  the  Secretary  of  State  at  Sacramento 
and  counted  in  the  same  manner  as  other  votes  cast 
in  the  State  at  that  election.1 

The  act  then  provided  that  on  the  day  fixed  by 
law  for  holding  the  State  election,  and  also  for  choos- 
ing electors  for  President  and  Vice-president  for  the 
year  1864,  and  "for  every  general  election  thereafter 
during  the  war  in  which  the  national  government  is 
now  engaged,"  a  ballot  box  should  be  provided,  and 
an  election  be  held  in  the  field  in  the  manner  provided 
in  the  act. 

In  October,  1864,  the  validity  of  this  statute  was 
brought  in  question  in  the  suit  of  Bourland  vs.  Hildreth.2 
At  the  general  election  held  in  September,  1864,  cer- 
tain county  officers  were  voted  for  by  soldiers  in  the 
field.  The  Board  of  Supervisors  in  canvassing  the  votes 
counted  these  votes  of  soldiers,  and  declared  the 
election  upon  the  votes  cast  including  those  cast  by 
soldiers  in  the  field.  The  question  of  the  validity  of 
the  vote  then  went  to  the  County  Court,  which 
excluded  the  votes  cast  by  the  soldiers  and  declared 
the  other  candidates  elected.  From  this  judgment 
of  the  County  Court  there  was  an  appeal  to  the 
Supreme  Court,  and  the  decision  was  rendered  at  the 
October  term,  1864.  There  were  five  judges  and  four 
opinions,  two  for  the  law  and  two  against  it.  The 
two  which  represented  three  judges  held  that  the  law 
was  unconstitutional,  upon  the  ground  that  the 
Constitution  fixed  the  place  of  voting  so  that  the 

1  Statutes  of  California,  1863-4,  p.  279. 

2  Bourland  vs.  Hildreth,  26,  Cal.  161. 


130  VOTING  IN  THE  FIELD 

Legislature  could  not  change  it,  that  is,  the  Constitu- 
tion provided  where  the  right  of  suffrage  should  be 
exercised,  and  the  Legislature  could  not  prescribe  that 
it  should  be  exercised  anywhere  else.  It  took  the 
two  judges  forty-seven  printed  pages  in  the  reports  to 
announce  their  conclusion,  which  may  perhaps  be 
stated  in  their  own  language:  "We  are  unable  to 
come  to  any  other  conclusion  than  that  the  limits 
within  which  the  rights  of  suffrage  may  be  exercised, 
are  fixed  by  the  Constitution,  and  that  the  elector 
must  claim  his  vote  in  the  county  or  the  district  in 
which  he  has  his  residence." 

Sanderson,  C.  J.,  gave  a  dissenting  opinion  of 
thirty-six  printed  pages  in  the  reports,  and  Curry,  J. 
also  dissented  in  an  opinion  of  one  page,  both  holding 
that  the  Act  was  constitutional. 

Sanderson  said  that  the  validity  of  the  act  was 
discussed  at  the  time  of  its  passage,  and  that  the 
act  of  the  Legislature  under  such  circumstances  should 
not  be  held  invalid  unless  it  was  entirely  clear  that  it 
was  contrary  to  the  Constitution,  and  he  held  that 
the  language  of  the  California  Constitution  in  the 
light  of  its  previous  construction  (and  he  cited  many 
statutes  bearing  upon  that)  did  not  prescribe  the 
place  of  voting,  but  left  that  place,  as  well  as  the 
time  of  voting,  to  the  Legislature  to  be  fixed  from 
time  to  time  in  such  way  as  they  thought  best. 

Curry  in  his  dissenting  opinion  said  that  the 
words  of  the  Constitution  prescribed  the  qualification 
of  the  elector,  and  not  the  place  where  the  elector 
should  vote;  that  the  subject  of  the  place  at  which 
the  right  to  vote  must  be  exercised  is  not  fixed  by 
this,  or  any  other  provision  of  the  Constitution. 
The  result  was  that  the  soldiers'  voting  act  of  1863 
was  held  unconstitutional. 


CALIFORNIA  131 

In  1864  there  were  cast  under  this  act  2,600  votes 
for  Lincoln,  and  237  for  McClellan,  a  total  of  2,837  or 
a  little  less  than  three  per  cent  of  the  total  vote  of 
the  State  which  was  105, 975. l 

March  17,  1866,  the  soldiers'  voting  act  of  1863 
was  repealed.2 

1  House  Journal,  1864,  p.  447;  Senate  Journal,  1864,  pp.  545.  546. 

2  Statutes  California,  1866,  C,  5251. 


CHAPTER  XVII 

NEW  YORK 

IN  the  State  compaign  in  New  York  in  1862,  be- 
tween Horatio  Seymour  and  General  Wads  worth, 
for  Governor,  the  propriety  of  passing  a  statute  which 
would  enable  soldiers  to  vote  in  the  field,  was  dis- 
cussed, and  if  General  Wadsworth  had  been  elected 
he  doubtless  would  have  recommended  the  Legisla- 
ture to  pass  such  a  statute.  But  Seymour  was  elected 
and  although  in  his  annual  message  he  discussed 
national  affairs  at  unusual  length  and  with  great 
freedom,  bitterly  criticizing  the  administration  in  its 
conduct  of  the  war,  he  made  no  reference  to  a  soldiers' 
voting  law,  nor  did  he  communicate  with  the  Legisla- 
ture by  any  special  message  recommending  such  a  law. 
A  bill  was  introduced  however  on  February  10, 
1863,  in  the  Assembly  to  authorize  volunteer  soldiers 
to  vote  in  the  field,  which  with  other  bills  for 
the  same  purpose  was  referred  to  the  Judiciary 
Committee.  On  April  8,  the  Judiciary  Committee 
reported  in  the  Senate  a  bill  entitled  "An  Act  to 
Secure  the  Elective  Franchise  to  the  Qualified  Voters 
of  the  Army  and  Navy  of  the  State  of  New  York," 
and  recommended  its  passage.1  On  April  10,  it  was 
amended  in  various  particulars  and  passed  by  a  vote 
of  19  to  7.  The  bill  then  wrent  to  the  Assembly.2 
On  April  13,  the  Governor  sent  a  message  to  the 
Legislature,  in  which  he  said,  "The  question  of 

1  Assembly  Journal,  1863,  pp.  195,  205,  537,  869. 
1  Senate  Journal,  1863,  pp.  351,  367,  381,  395. 


NEW  YORK  133 

a  method  by  which  those  of  our  fellow-citizens  who 
are  absent  in  the  military  and  naval  service  of  the 
nation  may  be  enabled  to  enjoy  their  right  of  suffrage, 
is  a  question  of  great  interest  to  the  people  of  this 
State,  and  has  justly  excited  their  attention."  He 
then  pointed  out  objections  to  any  bill  not  based 
upon  a  constitutional  amendment,  saying,  that  in 
case  the  legislation  was  not  so  guarded  as  to  protect 
the  soldiers  in  the  exercise  of  their  rights,  "the  flames 
of  civil  war  will  be  kindled  in  the  North";  and  that 
he  had  "noticed  with  deep  regret  attempts  on  the 
part  of  some  of  the  officers  of  the  national  govern- 
ment to  interfere  with  the  free  enjoyment  of  their 
political  opinions  by  persons  in  the  army." 

On  April  14  the  Senate  passed  the  following 
resolution :  — 

"Resolved,  That  the  Attorney  General  be  requested  to 
examine  Senate  bill  No.  300,  entitled  'An  act  to  secure 
the  elective  franchise  to  the  qualified  voters  of  the  army 
and  navy  of  the  State  of  New  York.'  And  that  he  be 
requested  to  inform  the  Senate  whether  in  his  opinion 
the  bill  is  in  conflict  with  the  Constitution,  and  whether 
any  amendment  to  the  Constitution  is  necessary  to  secure 
the  elective  franchise  to  such  voters  while  absent  from  the 
State."  i 

On  April   15   the   Attorney   General   sent  to   the 
Senate  an  opinion  that  the  bill  was  constitutional. 
He  said: 

"The  question  is,  whether  the  actual  presence  of  the 
elector  is  required  by  the  Constitution,  or  whether  the 
Legislature  may  authorize  the  deposit  of  his  vote  while 
he  yet  continues  in  service  abroad. 


1  Senate  Journal  of  the  State  of  New  York,  88th  Session,  p.  565. 


134  VOTING  IN  THE  FIELD 

"That  the  proposed  method  may  be  inconvenient, 
cumbrous  and  liable  to  fraud  and  abuse,  is  no  answer 
to  its  validity,  for  unless  it  is  prohibited  by  the  Constitu- 
tion, it  may  be  authorized  by  law.  The  elector  'must  offer 
his  vote,'  but  must  he  necessarily  do  so  in  person,  and 
with  his  own  hand,  or  may  the  Legislature  authorize 
him  to  offer  it  in  other  modes?  He  clearly  need  not  offer 
it  with  his  own  hand,  for  the  sick  and  infirm  and  para- 
lyzed may  vote,  and  so  may  the  soldier  or  sailor  who  has 
lost  both  hands  and  arms  in  the  service  of  his  country; 
and  unless  the  Constitution  requires  his  presence  at  the 
polls,  the  Legislature  may  dispense  with  it.  The  elector 
is  abroad,  but  he  is  still  regarded  by  the  Constitution 
as  a  resident  of  his  election  district,  and  entitled  to  vote 
there  and  not  elsewhere.  If  he  continues  to  serve  his 
country,  he  must  either  be  disfranchised,  at  a  time  and 
under  circumstances  when  all  the  privileges  of  citizen- 
ship, and  especially  those  of  an  elector  are  more  inesti- 
mable than  ever,  unless  the  laws  and  Constitution  he  is 
defending  secure  to  him  his  birthright.  There  is  nothing 
in  the  Constitution  indicating  the  manner  of  voting,  unless 
by  implication,  and  there  is  certainly  nothing  in  it,  either 
express  or  implied,  which  prohibits  the  Legislature  from 
prescribing  such  forms  for  depositing  the  votes  of  electors 
as  in  its  wisdom  it  may  deem  best.  I  therefore  hold 
that  Senate  Bill,  No.  300,  entitled  'An  Act  to  secure  the 
elective  franchise  to  the  qualified  voters  of  the  army  and 
navy  of  the  State  of  New  York,'  is  not  in  conflict  with 
the  Constitution,  and  consequently  that  no  amendment  of 
that  instrument  is  necessary  to  secure  the  elective  fran- 
chise to  such  voters  while  absent  from  the  State  in  the 
service  of  the  United  States."  1 

To  amend  the  Constitution  required  that  the  amend- 
ment be  agreed  to  by  a  majority  of  the  members 
elected  to  each  House,  and  entered  on  their  journals 

1  Journal  of  the  Senate.  1863,  p.  538. 


NEW  YORK  135 

with  the  yeas  and  nays  taken  thereon.  The  amend- 
ment was  then  to  be  referred  to  the  Legislature  to  be 
chosen  at  the  next  general  election  of  senators,  and 
published  for  three  months  previous  to  such  elec- 
tion. If  the  Legislature  next  chosen  agreed  to  the 
amendment  by  a  majority  of  all  the  members  elected 
to  each  House,  the  amendment  was  then  to  be  sub- 
mitted to  the  people  in  such  manner  as  the  Legisla- 
ture might  prescribe,  and  if  it  was  approved  by  a 
majority  of  the  electors  qualified  to  vote  for  members 
of  the  Legislature  voting  thereon,  it  became  a  part 
of  the  Constitution. 

On  the  same  day  that  the  message  of  the  Gov- 
ernor was  received  the  soldiers'  voting  bill  was  consid- 
ered in  the  Assembly.  On  April  17,  Mr.  Depew 
moved  that  the  bill  be  referred  to  the  Committee 
on  Privileges  and  Elections,  with  power  to  "report 
complete."  Then  ensued  motions  by  the  Democrats 
to  adjourn,  lay  on  the  table,  etc.,  which  were  all 
voted  down,  and  finally  at  11:25  o'clock  in  the 
evening  the  Assembly  adjourned. 

On  April  18,  the  Assembly  considered  the  message 
of  the  Governor,  and  the  voting  bill,  and  after  some 
time  spent  therein  the  bill  was  amended  and  ordered  to 
a  third  reading.  On  April  22,  Mr.  Van  Buren,  a  son 
of  President  Van  Buren,  popularly  known  as  "Prince 
John,"  moved  to  recommit  the  voting  bill  and  special 
order  to  the  Committee  on  the  Judiciary,  with  in- 
structions to  amend  the  title  so  as  to  read  as  fol- 
lows: "An  Act  to  transfer  the  Elective  Franchise 
from  the  Qualified  Voters  of  this  State  to  the 
Commander-in-chief  of  the  Army  and  Navy  of  the 
United  States."  There  were  various  other  motions  to 
amend,  and  many  votes  were  taken,  65  Republicans 
voting  for  the  bill,  and  60  Democrats  against  it,  until 


136  VOTING  IN  THE  FIELD 

finally  the  bill  was  passed  by  a  yea  and  nay  vote  of 
65  to  59.1 

In  the  Senate  on  April  13,  the  Governor's  message 
was  received  and  referred  to  the  Committee  on 
Privileges  and  Elections. 

On  April  22,  the  voting  bill  was  received  from  the 
Assembly  with  an  amendment,  which  the  Senate  ac- 
cepted, and  notified  the  Assembly.  The  bill  then 
went  to  the  Governor,  and  on  April  24  was  returned 
by  him  to  the  Senate  with  a  veto  message,  saying  that 
it  was  "so  clearly  in  violation  of  the  Constitution  in 
the  judgment  of  men  of  all  parties,  that  it  was  need- 
less to  dwell  on  that  objection  to  the  bill."  He  might 
have  stopped  there;  that  objection  was  sufficient,  but 
he  went  on  and  said: 

"This  bill  is  not  only  unconstitutional,  but  it  is  also 
extremely  defective  and  highly  objectionable.  The  time 
yet  remaining  of  the  present  session,  will  not  permit 
me  to  specify  all  the  objections  to  its  details.  It  does 
not  require  the  proxy  of  the  soldier  to  be  proven  before 
the  representative  of  the  State,  but  gives  the  power  only 
to  the  field  officers  of  regiments,  who  have  been  recently 
brought  within  the  operation  of  the  most  arbitrary  rules 
of  military  government;  it  does  not  permit  the  soldier  to 
choose  the  friend  in  whom  he  would  most  confide  as  his 
proxy,  but  requires  him  to  select  one  from  the  class  of 
freeholders,  who  are  not  recognized  by  our  Constitution 
as  entitled  to  special  privileges;  it  subjects  the  person 
appointed  (though  without  his  consent)  as  a  proxy,  to 
the  penalties  of  a  criminal  offence  —  fine  and  imprison- 
ment —  for  refusing  or  neglecting  to  deposit  the  vote  he 
receives,  though  he  may  believe  it  is  not  genuine;  it  pro- 
vides no  means  of  verifying,  at  the  polls,  the  authenticity 
of  proxies;  it  requires  the  inspectors  to  deposit  in  the  ballot 


Assembly  Journal  1863,  pp.  955,  958,  1082,  1084,  1098,  1185. 


NEW  YORK  137 

box,  under  the  penalties  of  a  criminal  offence,  the  ballots 
received  with  any  proxy,  however  much  reason  there  may 
be  to  doubt  its  authenticity;  it  allows  proxies  and  ballots 
to  be  sent  by  mail  or  otherwise,  which  permits  a  messenger 
to  be  selected  by  other  persons  than  the  voter;  it  does 
not  require  the  messenger  to  be  sworn;  it  does  not  re- 
quire him  to  deliver  the  proxies  and  ballots  to  the  persons 
named  as  proxies,  but  permits  him  to  destroy  or  change 
the  proxies  and  ballots,  or  deliver  them  to  any  unsworn 
and  unauthorized  person  he  may  select;  it  does  not  make 
the  change  or  destruction  of  the  ballots,  except  by  the 
person  appointed  as  proxy,  a  criminal  offence,  or  punish 
such  an  act  in  any  manner;  it  fails  to  protect  the  secrecy 
of  the  ballot,  and  it  requires  the  person  named  as  proxy 
to  deposit  in  the  ballot  box  the  ballots  delivered  to  him, 
with  a  proxy,  by  an  unknown  person,  although  they  may 
be  different  from  those  he  knows  were  sent  by  the  voter. 
This  brief  statement  will  be  sufficient  to  satisfy  all  of  the 
many  opportunities  this  bill  affords  for  gross  frauds  upon 
the  electors  in  the  army  and  upon  the  ballot  box  at  home. 
The  deposit  of  a  ballot  is  a  final  and  irrevocable  act,  and 
the  people  will  never  permit  ballots  to  be  received,  unless 
with  abundant  guarantees  that  they  are,  beyond  doubt, 
the  free  act  of  the  electors. 

"The  bill  is  in  conflict  with  vital  principles  of  electoral 
purity  and  independence.  .  .  .  This  bill  not  only  fails  to 
guard  against  abuses  and  frauds,  but  it  offers  every  in- 
ducement and  temptation  to  perpetrate  them,  by  those 
who  are  under  the  immediate  and  particular  control  of 
the  General  Government.  That  Government  has  not  hesi- 
tated to  interfere,  directly,  with  the  local  elections,  by 
permitting  officers  of  high  rank  to  engage  in  them,  in 
States  of  which  they  are  not  citizens.  In  marked  instances 
high  and  profitable  military  commissions  have  been  given 
to  those  who  have  never  rendered  one  day  of  military 
duty,  who  have  never  been  upon  a  battle  field,  but  who 
have  been  in  the  receipt  of  military  pay  and  military 


138  VOTING  IN  THE  FIELD 

honors,  to  support  them  in  their  interference,  in  behalf 
of  the  Administration,  with  the  elective  franchises  of 
different  sovereign  and  loyal  States.1 

He  then  indulged  in  a  general  tirade  against  the 
conduct  of  the  Government  in  carrying  on  the  war, 
saying  that  he  "deemed  it  his  duty,  not  only  to 
veto  the  bill,  but  to  protest  in  behalf  of  the  people 
against  the  wrongs  of  which  he  had  spoken,"  making 
a  very  bitter  anti-war  argument. 

The  bill  was  then  passed  over  the  veto  by  a  vote 
of  20  Republicans  to  9  Democrats.2  On  the  same  day 
the  Senate  returned  the  bill  to  the  Assembly,  and  the 
bill  and  the  Governor's  message  were  considered  by 
the  Assembly.  A  vote  was  taken,  and  37  voted  in 
favor  of  the  passage  of  the  bill,  notwithstanding  the 
veto,  and  49  against  it.3  Thus  came  to  an  end  the 
attempt  to  pass  a  soldiers'  voting  bill  in  1863.  Nobody 
seems  to  have  suggested  that  a  bill  free  from  consti- 
tutional objection  could  have  been  passed  to  allow 
voting  in  the  field  for  presidential  electors  and  members 
of  Congress. 

On  April  21,  the  Committee  on  Privileges  and 
Elections  made  a  very  elaborate  report  upon  the 
Governor's  message  of  April  13,  which  had  been 
referred  to  them.  They  said  they  were  "con- 
strained to  regard  its  contents  as  most  strange  and 
indefensible,  and  its  transmission  to  this  body  under 
the  circumstances  as  a  breach  of  the  privileges  of  the 
Senate." 

They  then  discussed  the  entire  subject  of  soldiers' 
voting  and  of  the  Governor's  conduct  in  making  no 
recommendation  with  regard  to  it  until  a  bill  had 

1  Assembly  Journal,  1863,  pp.  1276-77. 
*  Senate  Journal,  1863,  pp.  745,  794. 
3  Assembly  Journal,  1863,  p.  1278. 


NEW  YORK  139 

substantially  passed  the  Legislature,  and  then  seeking 
to  defeat  the  bill  by  an  unwarranted  message  against  it. 
They  said:  "This  tends  to  break  down  the  constitu- 
tional barriers  which  have  wisely  sought  to  render  the 
coordinate  branches  of  the  government  independent  of 
each  other  in  their  action."  And  finally  they  said: 

"In  the  belief  that  the  communication  from  his  Excel- 
lency, under  consideration,  was  extra-official  and  unau- 
thorized —  that  its  tendency  is  to  stimulate  and  encourage 
this  lawless  rebellion,  by  exhibiting  a  divided  sentiment 
at  home,  and  a  censorious  spirit  against  the  national  ad- 
ministration by  the  Governor  of  this  State,  to  foster  par- 
tizan  organizations  and  promote  political  conflicts,  to 
dishearten  those  who  are  engaged  in  the  service  of  our 
common  country,  and  to  sow  the  seeds  of  disunion  and 
demoralization,  where  a  renewed  love  of  country,  and  a 
more  exalted  patriotism  should  alone  be  cultivated  — 
therefore  to  arrest,  as  far  as  possible,  the  mischievous 
influences  so  insidiously  infused,  to  vindicate  the  inde- 
pendence and  dignity  of  the  Senate,  and  to  rebuke  the 
attempt  to  influence  its  action  and  unwarrantably  review 
its  proceedings  and  deliberations,  the  committee  recom- 
mend the  passage  of  the  following  resolutions: 

'"Resolved,  That  the  paper  without  date,  addressed 
and  transmitted  to  the  Senate  on  the  13th  instant,  by  his 
Excellency  the  Governor,  purporting  to  be  a  message  to 
the  Senate  from  him,  was  extra-official  and  unauthorized, 
and  that  its  transmission  was  a  breach  of  the  privi- 
leges of  the  Senate;  and,  to  the  end  that  the  independ- 
ence and  dignity  of  the  Senate  be  vindicated,  and  the 
breach  of  privilege  be  suitably  rebuked,  and  may  not 
serve  as  a  precedent,  be  it  further 

"'Resolved,  That  said  communication  be  laid  upon  the 
table,  without  action  thereon  or  further  notice."1 

On  April  24,  one  member  of  the  Committee  filed 
a  minority  report  which  was  quite  intemperate  in 


140  VOTING  IN  THE  FIELD 

its  language.  It  alluded  to  the  national  administra- 
tion as  the  "administration  of  a  cabal,"  discussed  the 
Attorney  General's  opinion  hereafter  quoted,  and  said 
that  no  lawyer  of  eminence  concurred  with  it,  and 
finally  praised  the  Governor  for  his  "well-timed  and 
necessary  rebuke  of  the  national  administration  by 
reason  of  its  unwarranted  and  arbitrary  attempt  to 
control  the  political  opinions  and  actions  of  the 
individuals  composing  the  national  army,  and  for  its 
scarcely  concealed  design  to  endeavor  to  use  that 
army  as  a  machine  for  retaining  its  power." 

It  spoke  of  the  "political  and  rabid  fanaticism, 
which  has  swayed  our  destinies  in  Washington,  and 
has  placed  our  Constitution  in  peril  by  the  imbecility, 
corruption  and  partizanship  of  the  national  Govern- 
ment," and  finally  said  that  the  "myrmidons  of  the 
corrupt  dynasty  at  Washington  will  be  overwhelmed 
at  the  coming  election." 

The  majority  resolutions  were  adopted,  by  a  vote 
of  16  to  10  in  the  Senate.1 

On  April  14,  1863,  an  amendment  to  the  Consti- 
tution was  proposed  in  the  Senate  as  follows :  - 

"Provided  that  in  time  of  war  no  elector  in  the  mili- 
tary service  of  the  United  States,  in  the  army  or  navy 
thereof,  shall  be  deprived  of  his  vote  by  reason  of  his 
absence  from  the  State,  and  the  Legislature  shall  have 
power  to  provide  the  manner  in  which,  and  the  times  and 
places  at  which,  such  absent  electors  may  vote,  and  for 
the  canvass  and  return  of  their  votes  in  the  election  dis- 
tricts in  which  they  respectively  reside,  or  otherwise." 

On  April  16,  the  amendment  was  referred  to  the 
Judiciary  Committee  of  the  Senate.  On  April  22, 
a  majority  of  the  Judiciary  Committee  reported  the 

1  Senate  Journal,  1863,  p.  1799. 


NEW  YORK  141 

amendment  and  recommended  its  adoption.  On 
April  23,  a  minority  of  the  Committee  reported  as 
follows : 

"The  Constitution  declares  that  every  male  citizen, 
of  the  age  of  twenty-one  years,  and  who  has  been  a  citizen 
for  ten  days,  shall  be  entitled  to  vote,  provided  he  has 
been,  at  the  time  of  offering  his  vote,  an  inhabitant  of  the 
State  for  one  year  next  preceding,  and  of  the  county  for 
the  last  four  months. 

"The  third  section  of  the  same  article  further  declares 
that  no  person  who  would  otherwise  be  qualified  to  vote, 
shall  become  disqualified  by  reason  of  his  absence  in  the 
service  of  the  United  States.  The  soldier,  therefore,  who 
at  the  call  of  his  country,  and  in  the  hour  of  its  peril,  has 
left  the  State  for  the  defence  of  that  country,  is  not  the 
less  a  qualified  voter  than  he  would  have  been  if,  resisting 
the  impulses  of  patriotism,  he  had  remained  at  home. 

"Since  the  commencement  of  the  present  civil  war 
in  which  the  country  is  engaged,  more  than  two  hundred 
thousand  citizens  have  left  the  State  to  engage  in  the 
service  of  the  United  States.  Three-fourths  of  these, 
it  may  be  safely  affirmed,  are  legal  voters.  Nearly,  if 
not  quite,  one-quarter  of  the  whole  number  of  voters 
in  the  State  have  thus  joined  the  army  of  the  United 
States.  They  are  still  qualified  voters.  They  are  still 
as  much  entitled  to  exercise  the  right  of  suffrage  as  those 
they  have  left  behind.  The  framers  of  the  Constitution 
were  careful  to  declare  that  their  absence  under  such 
circumstances  should  not  work  a  forfeiture  of  their  rights 
as  citizens. 

"It  being  conceded  that  these  patriotic  soldiers  are 
still,  notwithstanding  their  absence,  entitled  to  vote,  the 
important  question  now  presented  is,  whether,  in  order 
to  exercise  this  constitutional  privilege,  it  is  necessary 
that  they  should  return  to  the  State.  The  same  public 
exigencies  which  took  them  away,  now  forbid  their  return. 
If  such  return,  therefore,  is  to  be  regarded  as  a  condition 


142  VOTING  IN  THE  FIELD 

precedent    to    their    right    to    vote,    they    are    practically 
disfranchised. 

"There  certainly  is  nothing  in  the  language  of  the 
Constitution  which  demands  such  a  construction,  and 
surely  no  one  will  contend  that  a  result  so  unpatriotic, 
as  well  as  unjust,  should  be  reached  by  intendment  or 
implication. 

"The  fourth  section  of  the  article  of  the  Constitu- 
tion makes  it  the  duty  of  the  Legislature  to  pass  laws  for 
the  purpose  of  ascertaining  by  proofs  what  persons  are 
entitled  to  vote.  In  obedience  to  this  requirement,  elec- 
tion laws  have,  from  time  to  time,  been  passed,  and  it  is 
true  that  all  those  laws  contemplate  the  presence  of  the 
voter  at  the  polls  when  he  asserts  his  right  to  vote. 
Under  ordinary  circumstances,  this  requirement  is  emi- 
nently proper. 

"The  conceded  difficulty  of  making  suitable  pro- 
vision for  ascertaining  the  qualifications  of  absent  per- 
sons who  claim  the  right  to  vote  are  so  great,  that  in 
ordinary  times,  and  when  but  comparatively  few  voters 
will  be  unable  to  be  present  on  the  day  of  an  election,  it 
has  not  been  deemed  expedient  to  provide  by  law  for 
securing  to  absent  citizens  their  right  to  vote. 

"But  whether  this  shall  be  done  or  not,  is  a  question 
of  legislative  discretion,  and  not  of  constitutional  power. 
Now,  when  the  State  has  sent  out  so  large  a  proportion 
of  its  voters  upon  the  great  errand  of  suppressing  insur- 
rection and  saving  the  country,  no  difficulties  should 
be  deemed  so  great  as  to  prevent  the  Legislature  from 
making  provision  for  securing  to  the  absent  patriots  the 
same  right  of  suffrage  which  they  would  have  been  en- 
titled to  exercise  if  they  had  remained  at  home. 

"Recognizing  the  overruling  justice  of  such  a  pro- 
vision, both  Houses  of  the  present  Legislature  have,  by 
a  constitutional  vote,  passed  an  act,  the  effect  of  which 
will  be,  if  it  becomes  a  law,  to  secure  to  every  absent 
soldier  his  right  to  vote.  Believing  such  a  law  to  be  in 


NEW  YORK  143 

accordance  with  the  spirit  and  object  of  the  Constitu- 
tion, and  to  violate  none  of  its  provisions,  the  undersigned 
deems  the  proposed  amendment  to  the  Constitution  wholly 
unnecessary  and  inexpedient." 

On  April  24,  a  resolution  amending  the  Constitu- 
tion which  had  been  passed  in  the  Assembly  was  sent 
to  the  Senate.  An  attempt  was  made  to  get  action 
upon  the  resolution  in  the  Senate,  but  it  failed  by  a 
vote  of  14  to  16.  Later  in  the  day  amendments  to  the 
resolution  were  voted  down,  and  the  resolution  was 
passed  by  a  vote  of  19  to  10.1 

In  the  Assembly  a  resolution  was  proposed  by 
Mr.  Dean  on  April  8th,  amending  the  Constitution 
so  as  to  permit  soldiers  to  vote  in  the  field.  On  April 
11,  the  resolution  was  under  debate  and  was  referred 
to  the  Judiciary  Committee.  On  the  thirteenth 
and  eighteenth  it  was  again  considered.  On  the 
twTenty-second  of  April  the  amendment  was  passed 
by  the  Assembly,  yeas,  114,  nays,  1,  and  sent  to  the 
Senate.  On  the  twenty-fourth,  the  Senate  returned 
the  resolution,  stating  that  they  had  passed  the  same, 
with  an  amendment,  to  which  the  Assembly  agreed 
by  a  vote  of  70  to  3,2  and  the  resolution  was  referred 
to  the  Legislature  next  to  be  chosen. 

In  New  York  the  original  method  of  voting  was 
viva  voce,  —  by  the  voter  personally  present.  Under 
a  provision  in  the  Constitution  of  1777,  the  practice 
of  voting  by  ballot  for  Governor  and  Lieutenant-gov- 
ernor was  introduced  on  March  27,  1778,  but  viva 
voce  voting  was  retained  for  senators  and  assembly- 
men until  February  13,  1787,  when  the  mode  of  voting 
by  ballot  for  them  was  introduced.3 

1  Senate  Journal,  1863,  pp.  561,  595,  740,  781,  788,  797. 

2  Assembly  Journal,  1863,  pp.  871,  939,  958,  1279. 

3  Article  6,  Const.  New  York,  1777;  Hough,  Am.  Consts.  p.  6. 


144  VOTING  IN  THE  FIELD 

In  the  Constitution  of  1821,  it  was  provided  that 
a  duly  qualified  elector  should  be  "entitled  to  vote 
in  the  town  or  ward  where  he  actually  resides  and  not 
elsewhere."  l  In  the  Constitution  of  1846,  the  pro- 
vision was  that  the  qualified  elector  should  be  "en- 
titled to  vote  in  the  election  district  of  which  he  shall 
at  the  time  be  a  resident,  and  not  elsewhere."  2 

This  language  was  in  force  as  a  part  of  the  Con- 
stitution of  New  York  in  1863.  The  bill  of  1863  was 
obviously  framed  to  avoid  the  explicit  provision  of  the 
Constitution  of  the  State  that  an  elector  should  vote 
in  his  election  district  and  "not  elsewhere."  It  pro- 
vided that  "every  elector  in  actual  military  service 
of  the  United  States  in  the  army  or  navy  thereof," 
who  was  absent  from  the  State  of  New  York  on  the 
day  of  election  should  be  "entitled  to  vote  at  any 
general  or  special  election  held  in  this  State  in  the 
manner  and  form  following." 

The  soldier  was  to  execute  an  instrument  not  more 
than  eighty  days  previous  to  the  election  authorizing 
any  elector  of  the  election  district  where  the  soldier 
resided,  to  cast  for  him  his  vote  or  ballot.  Such 
instrument  or  power  of  attorney  was  to  be  signed  by 
the  soldier,  attested  by  a  subscribing  witness,  and 
sworn  to  before  one  of  certain  specified  officers  in  the 
military  or  naval  service  of  the  United  States,  and  was 
to  have  attached  to  it  the  signature  and  official  desig- 
nation of  the  person  before  whom  it  was  sworn  to. 
The  soldier  was  then  to  make  and  subscribe  an  affi- 
davit setting  forth  his  qualifications  to  vote.  He  was 
then  to  prepare  his  ballot,  and  enclose  the  same  to- 
gether with  the  power  of  attorney  which  he  had  made 
in  an  envelope  duly  sealed,  and  having  on  the  outside 

1  Article  2,  Sect.  1.  Const.  New  York,  1821. 
*  Article  2,  Const.  New  York,  1846. 


NEW  YORK  145 

of  it  the  affidavit  of  the  qualifications  of  the  soldier 
to  vote.  The  envelope  which  contained  the  ballot 
and  power  of  attorney  was  to  be  enclosed  in  another 
envelope  marked  "Soldier's  Vote,"  which  was  to  be 
sealed  up  and  directed  to  the  person  who  was  author- 
ized by  the  power  of  attorney  to  cast  it,  and  the 
envelope  was  then  to  be  transmitted  to  the  person 
to  whom  it  was  directed  "by  mail  or  otherwise." 
The  elector  upon  receiving  such  letter  from  the  ab- 
sent soldier  might  open  the  outer  envelope,  but  he 
could  not  open  the  inner  one.  On  the  day  of  the 
election,  between  the  opening  and  the  closing  of  the 
polls,  he  was  required  to  deliver  the  inner  envelope 
to  the  inspector  of  elections  at  the  polls,  and  if  the 
name  of  the  person  signing  the  affidavit  of  qualifica- 
tion on  the  outside  of  the  envelope  containing  the 
ballot  was  found  to  be  entered  upon  the  register  of 
the  district  as  a  duly  qualified  voter  therein,  the 
inspectors  were  to  publicly  open  the  envelope  and 
deposit  the  vote  in  the  proper  box. 

There  were  numerous  other  provisions  for  affi- 
davits, giving  receipt  to  the  postmaster,  etc.,  designed 
to  carry  into  effect  this  proxy  voting. 

By  all  this  machinery  it  was  attempted  to  enable 
a  man  who  had  a  right  to  vote  in  an  election  district 
and  not  elsewhere,  to  exercise  that  right  without 
being  personally  present.  It  was  claimed  that  there 
was  nothing  in  the  Constitution  prohibiting  this 
method  of  proxy  voting,  that  the  person  to  whom 
the  power  of  attorney  was  given  to  vote  for  the  ab- 
sent elector  wras  a  mere  messenger,  and  that  his  act 
in  presenting  the  vote  to  the  inspector  of  election  was 
the  act  of  the  absent  soldier  elector.  It  seems  very 
clear  to  me  that  this  was  a  fallacious  view.  What 
the  Constitution  meant  was  that  men  should  person- 


146  VOTING  IN  THE  FIELD 

ally  vote  in  the  district  where  they  had  a  right  to 
vote,  and  not  that  they  should  send  a  vote  to  some- 
body who  might  cast  it  for  them. 

In  the  debate  on  the  bill  in  the  Senate,  the  case 
for  the  bill  was  stated  by  Mr.  Bailey  as  follows: 

"The  simple  and  only  object  of  this  bill  is  to  secure 
to  about  200,000  of  our  citizens  constituting  very  nearly 
one-third  of  the  voters  of  the  State,  the  exercise  of  the 
elective  franchise 

"The  men  whose  rights  we  seek  to  maintain,  are  the 
flower  of  our  population  —  the  defenders  of  our  liberties 
and  of  our  country.  To  them  is  committed  the  herculean 
task  of  putting  down  this  gigantic  rebellion.  In  the  per- 
formance of  this  patriotic  duty,  their  lives  are  placed  in 
constant  jeopardy.  Whether  they  shall  survive  the  strug- 
gle or  not  —  whether  they  shall  return  vanquished  or  vic- 
torious —  whether  the  cause  for  which  they  fight  shall 
triumph  or  be  lost,  depends  almost  entirely  upon  the 
action  of  the  State  and  National  authorities.  If  sus- 
tained promptly  and  effectually,  their  hardships  and 
dangers  will  be  diminished,  and  their  arms  victorious. 
Their  interest,  therefore,  in  the  elections  which  determine 
our  public  policy,  is  deeper  and  more  absorbing  than 
ours.  To  deny  the  exercise  of  the  elective  franchise  to 
such  a  vast  body  of  our  citizens,  at  such  a  time,  and  under 
such  circumstances,  unless  by  reason  of  an  inexorable 
necessity,  is  most  unjust.  Nay  more,  I  say  that  such 
an  act  is  a  high-handed  tyranny,  overshadowing  and 
overwhelming  by  its  magnitude  the  isolated  instances 
of  military  arrests,  over  which  so  much  indignant  elo- 
quence has  been  poured.  Finesse  as  you  will,  the  naked 
fact  is,  you  disfranchise  nearly  one-third  of  the  legal  voters 
of  this  State.  You  do  it  by  refusing  to  remove  a  tech- 
nical difficulty  which  now  stands  in  the  way  of  their  vot- 
ing —  a  technicality  created  by  the  Legislature,  and 
which  it  can  repeal  or  modify  at  its  pleasure. 


NEW  YORK  147 

"The  particular  provision  upon  which  most  stress 
is  laid,  is  the  one  substantially  saying  that  citizens  en- 
titled to  vote  must  vote  in  the  election  district  of  which 
they  shall,  for  the  time,  be  residents,  and  not  elsewhere. 
It  is  insisted  that  this  language  necessarily  requires  the 
voter  to  be  personally  present  in  the  district  when  he 
votes,  and  to  deposit  his  ballot  with  his  own  hand.  It 
is  conceded  that  the  soldiers  do  not  lose  their  residence 
by  absence  in  the  army.  Section  three  of  the  same  article 
expressly  declares  this.  If  these  soldiers  then  appear 
at  the  polls  of  their  respective  districts  on  election  day, 
though  they  may  have  been  years  absent  in  the  army, 
their  ballots  must  be  received.  So  much  is  admitted. 
The  only  question  remaining  is,  whether  they  may  not 
vote  in  their  respective  districts  here  in  the  State,  by 
sending  their  ballots  to  be  deposited  in  such  districts, 
in  a  manner  to  be  prescribed  by  law?  I  think  they  may. 
I  think  the  Constitution  does  not  forbid  this.  I  concede 
that  it  does  not  expressly  authorize  it.  The  framers  of 
that  instrument  never  imagined  the  possibility  of  such 
a  civil  war,  and  framed  no  provisions  with  reference  to 
it.  But  have  they  anywhere  in  the  Constitution  for- 
bidden the  Legislature  from  enacting  a  law  to  enable 
soldiers  engaged  in  another  part  of  the  country  in  putting 
down  a  rebellion,  to  send  their  ballots  to  be  deposited 
and  counted  in  their  respective  election  districts  at  home? 
For  I  confidently  affirm  that  the  Legislature  may  au- 
thorize this  to  be  done,  unless  the  Constitution  expressly 
forbids  it.  In  other  words,  it  is  not  necessary  to  find  an 
express  warrant  for  it  in  the  Constitution;  it  is  sufficient 
that  the  Constitution  does  not  prohibit  it.  It  must  be 
borne  in  mind  that  an  entirely  different  rule  applies  to 
the  State  Constitution  from  that  which  applies  to  the 
Constitution  of  the  United  States.  The  General  Govern- 
ment has  no  other  powers  than  those  expressly  named 
in  the  Federal  Constitution,  or  necessarily  implied  from 
its  actual  provisions  —  whereas  this  body  has  supreme 


148  VOTING  IN  THE  FIELD 

power  of  legislation  upon  all  subjects  of  internal  policy, 
unless  actually  forbidden  by  our  Constitution.  The  Fed- 
eral Constitution  is  an  instrument  conferring  powers  — 
the  State  Constitution  is  one  curtailing  powers.  It 
follows,  therefore,  that  the  Legislature  is  supreme  upon 
the  question  before  us,  unless  its  power  over  it  is  taken 
away  by  the  Constitution.  I  say  that  it  is  not.  The 
provisions  quoted  do  not  warrant  this. 

"What  does  this  bill  propose  to  do?  In  substance  to 
permit  the  soldiers  in  the  field  to  vote.  Where?  In 
Virginia  or  Tennessee?  No,  sir  —  not  at  all  —  but  in 
their  respective  election  districts  here  at  home. 

"It  provides  that  he  shall  vote  in  his  own  election 
district  in  the  State  of  New  York  and  nowhere  else.  True, 
it  allows  him  to  send  the  ballot  to  be  deposited  in  that 
district,  instead  of  appearing  in  person  and  depositing 
it  with  his  own  hand.  And,  does  the  section  of  the  Con- 
stitution referred  to  prohibit  this?  That  provision  de- 
clares that  he  shall  vote  in  his  own  district  and  nowhere 
else.  It  does  not  say  that  he  must  necessarily  deposit 
this  ballot  with  his  own  hand.  Now,  the  soldier,  under 
this  bill,  will  vote  in  his  own  district  and  nowhere  else. 
No  man  can  be  said  to  have  voted  under  any  law  until 
all  which  that  law  requires  him  to  do,  and  all  which  the 
persons  appointed  to  receive  his  ballot  are  required  to  do 
in  the  way  of  receiving  it,  has  been  actually  done.  To 
illustrate:  A  ballot  may  be  ordered  for  some  purpose  in 
this  Senate.  The  clerk,  I  will  suppose,  is  directed  to 
receive  the  ballots  and  Senators  are  permitted  to  send 
them  up  from  their  seats  by  a  messenger.  Now,  I  shall 
not  have  voted,  under  such  an  order,  when  I  have  prepared 
my  ballot  and  given  it  to  a  messenger  to  be  carried  to  the 
clerk.  I  shall  not  have  voted  until  the  messenger  has 
actually  delivered  the  ballot  to  the  clerk,  and  he  has  re- 
ceived and  deposited  it  in  the  proper  place.  And  so  the 
soldier,  under  this  bill,  will  not  have  voted  when  he  has 
delivered  his  ballot  to  the  person  appointed  to  carry  and 


NEW  YORK  149 

deposit  it  at  home.  He  will  not  have  voted  until  that 
ballot  has  been  carried  to  his  election  district  in  this  State, 
and  is  there  received  and  deposited  in  the  proper  place. 
But  we  are  told  that  this  bill  allows  a  soldier  to  vote 
by  proxy.  Not  at  all.  The  ballot  cast  is  not  construc- 
tively, but  actually  his  own.  The  agent  who  deposits 
it  is  a  mere  machine  for  that  purpose.  He  has  no  more 
control  over  its  contents  than  the  recording  instrument 
in  a  telegraph  office  has  over  the  message  sent."  1 

On  January  7,  1864,  a  bill  to  secure  the  elective 
franchise  to  qualified  voters  in  the  army  and  navy 
was  introduced  in  the  Assembly  and  read  and  referred 
to  the  Committee  on  the  Judiciary.  On  January  12, 
another  bill  was  introduced  for  the  same  purpose 
and  referred  to  the  same  Committee.  On  January 
13  another  bill  for  the  same  purpose  was  introduced 
and  similarly  referred.  On  January  15  the  Committee 
on  the  Judiciary  reported  an  "Act  to  secure  the  elec- 
tive franchise  to  the  qualified  voters  of  the  Army 
and  Navy  of  the  State  of  New  York,"  and  recom- 
mended its  passage.  This  bill  was  then  referred  to 
the  Committee  of  the  Whole.  On  January  20  a 
minority  of  the  Committee  on  the  Judiciary  submitted 
a  report  dissenting  from  the  views  of  the  majority.2 
He  said : 

"A  bill  exactly  similar  was  passed  by  both  branches 
last  year  and  vetoed  by  the  Executive."  He  appended  a 
copy  of  the  veto  to  be  read  as  a  part  of  his  report,  and  in 
conclusion  he  said :  "  I  decline  to  be  used  as  an  instrument 
to  increase  the  power  of  a  sectional  party  by  the  endorse- 
ment of  a  measure  calculated  in  all  its  provisions  to  mis- 
represent and  betray  gallant  men  in  the  field."  3 

1  Assembly  Journal,  1864,  pp.  39,  56,  67,  78,  102,  127,  753. 

2  Assembly  Document  186,  No.  73. 
8  Senate  Document,  1864,  No.  23. 


150  VOTING  IN  THE  FIELD 

On  January  21,  the  Committee  of  the  Whole  con- 
sidered the  voting  bill.  On  January  26  the  bill  was 
made  a  special  order  for  March  23.  On  March  23, 
the  bill  was  considered.  On  March  29,  the  bill  was 
again  considered.  On  March  31,  it  was  again  con- 
sidered, and  the  Committee  of  the  Whole  was  dis- 
charged, and  the  bill  referred,  together  with  all 
matters  pertaining  thereto,  to  a  select  committee  of 
seven  members  to  report. 

On  April  2,  by  unanimous  consent  a  bill  was  in- 
troduced to  enable  electors  absent  in  the  military 
service  of  the  United  States  to  vote,  read  a  first  and 
second  time,  and  referred  to  the  select  committee. 
On  April  2,  the  select  committee  reported  the  bill 
amended,  and  with  an  amended  title,  wrhich  was 
agreed  to.  On  April  4,  the  bill  was  again  considered 
in  the  Committee  of  the  Whole,  and  reported  with 
amendments,  and  ordered  engrossed  for  a  third  read- 
ing. On  April  5,  a  motion  was  made  to  amend  the 
bill,  which  was  defeated,  and  the  bill  was  read  a  third 
time,  and  by  a  vote  of  87  yeas  to  15  nays,  sent  to 
the  Senate,  where  it  was  read  and  referred  to  the  Judi- 
ciary Committee.  On  April  8,  Mr.  Eolger  for  the 
Committee  reported  in  favor  of  the  passage  of  the 
bill.  On  April  9  Mr.  Smith,  for  a  minority  of  the 
Committee,  reported  a  bill  to  provide  for  soldiers 
voting,  which  was  referred  to  the  Committee  of  the 
Whole,  who  considered  the  bill  at  length.  On  April 
12,  the  bill  having  been  made  a  special  order  was 
considered,  and  a  motion  was  made  to  recommit  the 
bill  to  the  Committee  on  the  Judiciary,  with  instruc- 
tions to  strike  out  all  after  the  enacting  clause  and 
insert  a  new  bill.  This  new  bill  provided  for  the  ap- 
pointment by  the  Governor  and  Comptroller  of  such 
number  of  voting  agents  as  they  might  deem  neces- 


NEW  YORK  151 

sary,  to  proceed  to  the  regiments,  military  posts  and 
hospitals,  and  receive  the  votes  of  the  enlisted  or 
drafted  men,  and  for  the  return  and  canvass  of  the 
votes  by  the  Governor  and  Comptroller.  This  amend- 
ment was  rejected,  yeas,  9,  nays,  19.  The  bill  was 
passed  by  a  vote  of  29,  and  went  to  the  Assembly. 
On  April  13,  the  Assembly  returned  the  bill,  saying 
they  had  non-concurred  in  the  amendments  of  the 
Senate,  and  requested  a  committee  of  conference.  On 
April  14,  the  committee  of  conference  reported  that 
they  were  unable  to  agree.  It  was  then  ordered  that 
the  bill  be  returned  to  the  Assembly,  and  the  Senate 
asked  for  a  new  committee  of  conference.1  Upon 
this  request  being  received  by  the  Assembly,  a  recon- 
sideration was  moved  of  the  vote  by  which  the 
Assembly  declined  to  concur  in  the  amendments  of 
the  Senate,  the  previous  question  was  ordered,  and 
the  Assembly  concurred  in  the  amendments  of  the 
Senate  by  a  vote  of  75  yeas  to  23  nays.2  The  Act 
was  passed  April  21,  1864,  and  took  effect  immedi- 
ately. It  was  open  to  the  same  objections  as  the 
Act  of  1863  and  yet  Seymour  signed  it. 

January  6,  1864,  the  constitutional  amendment  was 
proposed  in  the  Senate  by  a  joint  resolution  setting  it 
forth  as  having  passed  the  previous  Legislature  and 
been  published,  and  the  joint  resolution  was  laid  on 
the  table.  On  January  7,  the  joint  resolution  was 
taken  from  the  table  and  agreed  to  by  a  unanimous 
vote  and  sent  to  the  Assembly.3  On  January  7,  a 
bill  was  introduced  to  perfect  an  amendment  of  the 
Constitution  providing  for  voting  by  electors  in  the 
military  service  of  the  United  States.  It  was  read 


1  Senate  Journal,  1864,  513,  544,  556,  560,  601,  611,  614,  633,  635. 

2  Assembly  Journal,  1864,  pp.  818,  819,  849,  857,  868,  876,  1105,  1106 
8  Ibid.,  pp.  35,  40,  107-8,  127,  153,  158. 


152  VOTING  IN  THE  FIELD 

a  first  and  second  time  and  referred  to  the  Com- 
mittee on  the  Judiciary,  which  on  January  22,  re- 
ported in  favor  of  its  passage  with  amendments,  and 
it  was  considered  and  recommitted  to  the  Committee 
on  the  Judiciary.1  On  January  26,  the  Judiciary 
Committee  reported  the  "bill  complete,"  which  was 
agreed  to  and  the  bill  engrossed  for  a  third  reading.1 
On  January  28,  the  bill  was  reported  as  correctly 
engrossed,  and  on  the  same  day  it  was  passed  by 
unanimous  vote  of  109,  and  sent  to  the  Senate.1 

In  the  meantime  on  January  6,  a  similar  joint 
resolution  had  been  proposed  in  the  Senate  by  Mr. 
Folger  and  laid  on  the  table.  On  January  12,  the 
joint  resolution  which  had  passed  the  Assembly  was 
referred  to  the  Committee  on  the  Judiciary  in  the 
Senate,  which  on  January  14  reported  the  resolu- 
tion and  recommended  its  passage.2  On  January  15 
the  resolution  was  passed  by  a  vote  of  twenty-one, 
and  the  Assembly  so  advised.2  On  the  same  day  leave 
was  given  to  introduce  a  bill  to  perfect  the  amend- 
ment, that  is,  to  cause  it  to  be  submitted  to  the 
people.2  On  January  29,  the  bill  was  referred  to  the 
Committee  on  the  Judiciary,  which  on  February  3 
reported  in  favor  of  its  passage.3  On  February  5, 
the  Assembly  bill  to  perfect  the  amendment  was  re- 
ferred to  the  "first  committee  of  the  whole."  3  On 
February  9,  the  bill  was  recommitted  to  the  Judi- 
ciary Committee,  with  instructions  to  amend.3  On 
the  same  day  it  was  reported  to  the  Senate  and 
passed  by  a  vote  of  twenty-six,  and  the  Assembly 
notified  thereof.3  On  February  10  the  Assembly 
concurred  by  a  vote  of  81,  and  the  Senate  was  so 

1  Assembly  Journal,  1864,  pp.  35,  40,  107-8,  127,  153,  158. 
1  Senate  Journal,  1864,  pp.  31,  42,  48,  54,  53. 
3  Ibid.,  pp.  101,  116,  134,  143,  144. 


NEW  YORK  153 

notified.1  On  February  11  the  bill  was  passed.1  It 
took  effect  February  13,  1864.2 

The  amendment  was  submitted  to  the  electors 
at  a  special  election  held  March  8,  1864.  The  result 
was  determined  by  the  Canvassing  Board  consisting 
of  Chauncey  M.  Depew,  Secretary  of  State,  Lucius 
Robinson,  Comptroller,  and  John  Cochran,  Attorney 
General,  the  State  Board  of  Canvassers,  who  March 
23,  1864,  certified  that  258,795  votes  had  been  cast 
for  the  amendment,  and  48,079  against  it,  and  it 
became  a  part  of  the  Constitution.3 

As  I  have  said  the  act  of  1864  was  substantially  like 
that  of  1863  —  an  act  for  proxy  voting.  It  did  not 
provide  for  the  appointment  of  Commissioners  to  take 
the  votes  direct  from  the  soldiers  in  the  field,  but  only 
provided  that  the  Secretary  of  State  should  prepare 
the  necessary  blank  forms  and  envelopes  to  enable  the 
soldier  to  vote  substantially  as  was  provided  in  the 
act  of  1863,  and  "send  the  blank  power  of  attorney 
and  envelopes,  and  copies  of  the  act  itself  at  least 
two  months  previous  to  the  election  to  the  several 
hospitals,  posts  and  naval  stations  in  sufficient  quan- 
tity to  furnish  one  copy  of  each  blank  form,  envelope, 
and  copy  of  this  act  to  each  person  in  the  actual  mili- 
tary service  of  the  United  States  in  the  army  or  navy 
thereof  from  this  State  and  absent  therefrom." 
When  the  Secretary  of  State  had  done  that  his  duty 
was  ended.  All  the  machinery  of  the  act  was  to  be 
thereafter  worked  by  the  soldier.  Theoretically  he 
was  to  select  the  person  to  whom  he  should  give  his 
power  of  attorney,  he  was  to  put  his  ballot  in  the 
envelope,  and  was  to  sign  the  affidavit  on  the  outside 
of  the  envelope  and  swear  to  it.  Then  he  was  to  seal 

1  Assembly  Journal,  1864,  pp.  242,  251.        *  Chapter  9,  Laws  N.  Y.  1864. 
3  New  York  Assembly  Document,  1864,  No.  158. 


154  VOTING  IN  THE  FIELD 

up  the  envelope  and  put  it  with  his  power  of  attorney 
in  another  outside  envelope,  which  he  was  to  direct  to 
the  person  to  wrhom  he  gave  his  power  of  attorney, 
and  then  he  was  to  send  it  by  mail  or  otherwise  to 
the  person  who  had  the  power  of  attorney.  This  left 
the  matter  of  bringing  the  votes  for  the  one  party 
or  the  other  to  the  attention  of  the  soldier,  to  such 
persons  as  might  be  permitted  to  go  into  the  posts, 
hospitals  and  camps  for  that  purpose. 

The  Democratic  Attorney  General  of  New  York 
on  November  1  addressed  a  communication  to  the 
Inspectors  of  Elections  in  which  he  said,  very  prop- 
erly, that  they  were  the  sole  judges  of  whether  the 
election  laws  had  been  complied  with,  subject  only  to 
review  by  the  Courts.  He  then  pointed  out  nineteen 
different  things  required  by  the  soldiers'  voting  law, 
and  said  that  "if  any  one  of  these  essential  condi- 
tions be  not  observed  before  the  vote  is  offered  for 
deposit  in  its  appropriate  box  such  vote  should  not  be 
received."1 

The  Secretary  of  State,  Mr.  Depew,  for  the  pur- 
pose of  sending  out  his  blanks,  as  required  by  the 
Act,  applied  to  the  War  Department  for  a  statement 
of  the  location  of  the  New  York  regiments  in  the 
field,  how  they  were  brigaded,  and  in  what  divisions 
and  army  corps.  How  he  obtained  it,  and  how  he 
sent  off  his  blanks,  is  told  by  him  as  follows :  - 

"Governor  Seymour  was  elected  on  the  Democratic 
ticket  in  1863  as  Governor  of  the  State  of  New  York,  and 
the  following  year  I  was  elected  at  the  head  of  the  Repub- 
lican ticket  as  Secretary  of  State.  A  law  was  passed  by 
the  Legislature,  which  was  Republican,  to  take  the  sol- 
diers' vote.  Well,  ordinarily  this  duty  would  have  de- 

1  Letter  of  Attorney  General  Cochrane,  October  31,  1864.  Published  in  the 
New  York  Tribune,  November  1,  1864. 


NEW  YORK  155 

volved  upon  the  Governor.  Because  the  Legislature  in 
this  instance  imposed  it  upon  me,  I  spent  much  time  in 
Washington  endeavoring  to  get  the  data  to  send  out  the 
necessary  papers  enabling  the  New  York  soldiers  to  vote. 
Under  the  Act  each  soldier  was  to  make  out  his  ballot, 
and  it  was  to  be  certified  by  the  commanding  officer  of  his 
company  or  regiment,  and  then  sent  to  some  friend  at 
his  last  voting  place  to  be  deposited  on  election  day.  It 
was  therefore  necessary  for  me  to  ascertain  the  location 
of  every  New  York  company  and  regiment.  They  were 
scattered  all  over  the  South,  and  in  all  the  armies.  Secre- 
tary Stanton  refused  to  give  me  any  information  what- 
ever, and,  finally,  with  a  great  deal  of  temper,  informed 
me  one  day  that  information  of  that  character  given  to 
politicians  wrould  reach  the  newspapers,  and  in  -that  way 
the  Confederates  would  know  by  the  location  of  the  New 
York  troops  precisely  the  condition  and  situation  of  every 
army,  corps  brigade  and  battery.  As  I  was  leaving  the 
War  Department  I  met  Mr.  Washburne  and  the  Marshal 
of  the  district  coming  in.  Mr.  Washburne  said:  'Depew, 
you  seem  to  be  in  a  state  of  considerable  excitement.'  I 
told  him  of  my  interview  with  Mr.  Stanton,  and  that  I 
was  going  home  to  New  York,  and  would  publish  in  the 
morning  papers  a  card  that  the  soldiers'  votes  could  not 
be  taken,  owing  to  the  action  of  Secretary  Stanton.  And 
I  added:  'I  can  inform  you  that  a  failure  to  get  them  will 
lose  Mr.  Lincoln  the  electoral  vote  of  New  York.'  Mr. 
Washburne  said,  'You  don't  know  Lincoln;  he  is  as  good 
a  politician  as  he  is  a  President,  and  if  there  was  no  other 
wray  to  get  those  votes  he  would  go  round  with  a  carpet- 
bag and  collect  them  himself.'  He  then  asked  me  to 
wait  until  the  President  could  be  informed  as  to  the  facts. 
I  stood  in  the  corridor  leading  to  Mr.  Stanton's  room,  and 
in  about  fifteen  minutes  an  orderly  came  out  and  said  the 
Secretary  wanted  to  see  Mr.  Depew.  I  went  in  and  Mr. 
Stanton  met  me  with  the  most  cordial  politeness;  inquired 
when  I  arrived  in  Washington,  if  I  had  any  business 


156  VOTING  IN  THE   FIELD 

with  his  Department,  and  whether  he  could  do  any- 
thing for  me.  I  restated  to  him  what  I  had  already  stated 
at  least  half  a  dozen  times  before.  He  sent  me  with  an 
order  so  peremptory  to  the  head  of  one  of  the  bureaus, 
that  I  left  Washington  that  night  with  a  list  and  location 
of  every  organization  of  New  York  troops. 

"When  I  reached  New  York  I  summoned  the  officers 
of  the  express  companies  of  that  day  to  know  if  they  could 
get  the  packages  containing  the  blanks  for  the  soldiers' 
votes  to  the  various  regiments  and  companies  and  bat- 
teries of  New  York  troops,  scattered  as  they  were  all  over 
the  South.  Without  consultation  they  said  it  could  not 
be  done.  I  then  sent  for  old  Mr.  Butterfield,  the  origina- 
tor of  the  American  Express  Company,  and  stated  the 
case  to  him.  He  said  they  were  organized  for  such  pur- 
poses, and  if  they  could  not  accomplish  them  they  had 
better  disband.  He  then  undertook  to  arrange  through 
the  various  express  companies,  by  his  own  direct  super- 
intendence, to  secure  the  safe  delivery  in  time  to  every 
company  —  and  he  succeeded."  l 

The  method  of  voting  prescribed  by  this  act  was 
not  satisfactory,  and  in  1865  the  Legislature  repealed 
it,  and  passed  another  act,  providing  for  actual  voting 
in  the  field  by  opening  polls  by  the  officers,  printing 
of  ballots,  and  returning  the  ballots  with  certificates 
of  the  result  of  the  election,  to  the  Secretary  of 
State  and  to  the  Governor  of  the  State.  The  act 
provided  that  these  ballots  were  to  be  "returned  by 
mail."  ' 

In  1866  the  act  of  1865  was  repealed.3  The  con- 
stitutional provision,  however,  was  again  called  into 
operation  in  the  Spanish  war  in  1898,4  and  the  Leg- 
islature at  an  extraordinary  session  in  July  of  that 

1  Reminiscences  of  Abraham  Lincoln  (Rice),  p.  431. 

*  Ch.  570  New  York  Laws,  1865.  4  Acts  1898,  Ch.  674. 

»  Ch.  524,  Acts  1866. 


NEW  YORK  157 

year  passed  a  law  to  enable  electors  absent  in  the 
military  and  naval  service  of  the  United  States  to 
vote  where  the  organization  to  which  they  belonged 
might  be  stationed.1 

October  1,  1864,  the  War  Department  issued  an 
order  from  the  Adjutant  General's  Office,  as  follows: 

"GENERAL  ORDERS 
No.  265. 

"Regulations  in  respect  to  the  distribution  of  elec- 
tion tickets  and  proxies  in  the  Army. 

"In  order  to  secure  a  fair  distribution  of  tickets  among 
soldiers  in  the  field,  who,  by  the  laws  of  their  respective 
States  are  entitled  to  vote  in  the  approaching  elections, 
the  following  rules  and  regulations  are  prescribed: 

"1.  One  agent  for  each  army  corps  may  be  desig- 
nated by  the  State  executive,  or  by  the  State  committee 
of  each  political  party,  who,  on  presenting  his  credentials 
from  the  State  executive,  or  the  chairman  of  said  com- 
mittee, shall  receive  from  this  department  a  pass  to  the 
headquarters  of  the  corps  for  which  he  is  designated,  with 
tickets,  or  proxies  when  required  by  State  laws,  which 
may  be  placed  by  him  in  the  hands  of  such  person  or  per- 
sons as  he  may  select  for  distribution  among  officers  and 
soldiers. 

"'2.  Civilian  inspectors  of  each  political  party,  not  to 
exceed  one  for  each  brigade,  may  in  like  manner  be  desig- 
nated, who  shall  receive  passes  on  application  to  the  ad- 
jutant-general, to  be  present  on  the  day  of  election  to 
see  that  the  elections  are  fairly  conducted. 

"'3.  No  political  speeches,  harangues,  or  canvassing 
among  the  troops  will  be  permitted. 

"4.  Commanding  officers  are  enjoined  to  take  such 
measures  as  mav  be  essential  to  secure  freedom  and  fair- 


1  Constitutional  History  of  New  York,  1847  to  1867,  Lincoln,  Vol.  II,  pp. 
235,  240. 


158  VOTING  IN  THE  FIELD 

ness  in  the  elections,   and  that  they  be  conducted  with 
due  regard  to  good  order  and  military  discipline. 

"'5.  Any  officer  or  private  who  may  wantonly  de- 
stroy tickets,  or  prevent  their  proper  distribution  among 
the  legal  voters,  interfere  with  the  freedom  of  the  elec- 
tion, or  make  any  false  or  fraudulent  return,  will  be  deemed 
guilty  of  an  offence  against  good  order  and  military  dis- 
cipline, and  be  punished  by  summary  dismissal  or  court- 
martial.'  "  l 

Horatio  Seymour  was  undoubtedly  the  ablest 
and  most  dangerous  of  all  the  anti-war  democrats 
of  the  North.  He  had  the  prestige  of  high  social 
position;  was  a  cultivated,  plausible  man  who  assumed 
to  give  to  whatever  he  did  the  stamp  of  regularity. 
But  all  the  time  he -was  working  to  the  best  of  his 
ability  to  defeat  the  administration  of  Lincoln. 

The  Legislature  had  refused  to  give  him  any 
authority  under  the  soldiers'  voting  act,  preferring 
to  trust  the  Republican  Secretary  of  State,  Mr. 
Depew.  But  he  was  not  to  be  deterred  by  this.  He 
was  a  candidate  for  re-election,  and  intensely  inter- 
ested, and  on  September  30,  1864,  he  sent  a  circular 
to  the  officers  of  the  New  York  troops  stating  that 
the  act  had  been  passed,  and  printing  only  Section 
13  of  it,  which  provided  that 

"Any  officer  of  the  State  or  of  the  United  States  who 
should  control  or  attempt  to  control  any  enlisted  elector 
in  the  exercise  of  his  rights  under  the  act,  by  menace, 
bribery,  fear  of  punishment,  hope  of  reward  or  any  other 
corrupt  or  arbitrary  measure,  or  resort  whatever  to  annoy, 
injure  or  otherwise  punish  any  such  officer  or  man  for  the 
manner  in  which  he  may  have  exercised  such  right,  should 
be  subject  to  indictment  and  trial  at  any  future  time,  and 

1  General  Orders,  Volunteer  Force,  1864  p.  161.  The  American  Annual 
Cyclopaedia  and  Register  of  Important  Events  of  the  Year,  1864,  p.  796. 


NEW  YORK  159 

upon   conviction   be   imprisoned   and   fined,    and   also   be 
ineligible  to  hold  any  office  in  the  State." 

This  was  obviously  done  to  intimidate  the  officers. 
It  was  needless  for  any  other  purpose  because  the 
voting  act  required  the  entire  act  to  be  sent  out  by 
the  Secretary  of  State,  and  it  had  been  so  sent  out 
to  every  officer.  Then  he  added:  "I  send  you  a  set 
of  ballots  prepared  by  the  friends  of  Gen.  McClellan, 
and  have  requested  the  Secretary  of  State  to  forward 
to  you  a  set  prepared  by  the  friends  of  Mr.  Lincoln."1 
Then,  acting  under  the  authority  of  the  Secretary  of 
War,  he  appointed  numerous  agents,  not  to  collect 
all  votes,  but  to  collect  Democratic  votes,  which  meant, 
to  procure  Democratic  votes  to  be  cast. 

And  now  comes  the  only  story  of  fraud  in  carry- 
ing out  a  soldiers'  voting  act  which  I  have  found. 
The  Legislature  of  New  York  had  refused  to  give  the 
Governor  any  authority  in  the  matter,  but  acting 
under  authority  of  this  order  of  the  War  Department, 
Governor  Seymour  appointed  some  fifty  or  sixty 
Democratic  agents  for  the  State  of  New  York,  giving 
them  each  a  commission  in  the  following  form :  — 

"The  People  of  the  State  of  New  York  by  the  grace  of 
God  free  and  independent  To  all  whom  these  presents  shall 

COme,  GREETING. 

"Know  ye  that  I,  HORATIO  SEYMOUR,  Governor  of  the 
State  of  New  York,  have  designated  and  appointed  and 
by  these  Presents  do  designate  and  appoint  pursuant  to 
General  Order  No.  265  of  the  War  Department  dated 
October  1st,  1864. 

EDWARD  J.  DONAHUE,  JR. 

in  this  State,  a  civilian,  to  be  present  as  an  Inspector  on 
the  part  of  the  Democratic  party  of  the  State  of  New 

1  Horatio  Seymour.     McCabe,  183-4. 


160  VOTING  IN  THE  FIELD 

York  to  see  that  the  voting  by  New  York  State  soldiers 
under  the  act  of  the  Legislature  of  said  State,  passed  April 
21st,  1864,  entitled  'An  Act  to  enable  the  qualified  elec- 
tors of  this  State  absent  therefrom  in  the  military  service 
of  the  United  States  in  the  army  or  navy  thereof  to  vote,' 
is  fairly  conducted  in  the  Fourth  Brigade  of  the  First 
Division  of  the  Second  Army  Corps  7th  N.  Y.  H.  Ar- 
tillery, 43rd  and  44th  N.  Y.  V. 
[SEAL] 

"IN  WITNESS  WHEREOF  I  have  hereunto  signed  my 
name  and  affixed  the  Privy  Seal  of  the  State  at  Albany 
this  19th  day  of  Oct.  in  the  year  of  our  Lord  1864. 

D.  WILLERS,  JR. 
Private  Secretary." 

These  commissions  were  all  to  persons  to  take 
the  Democratic  vote,  and  the  evidence  is  clear  that 
the  inspectors  thus  appointed  took  no  other  votes. 
Governor  Seymour,  or  the  Democratic  State  Commit- 
tee, also  appointed  agents  for  each  army  corps.  There 
were  no  commissions  issued  to  Republican  agents  or 
inspectors.  Such  agents  and  inspectors  were  appointed 
by  the  Republican  State  Committee  of  New  York. 
It  is  not  likely  that  Governor  Seymour  knew  per- 
sonally of  the  character  or  qualifications  of  inspectors 
commissioned  by  him.  They  were  recommended  to 
him  by  the  political  party  to  which  he  belonged, 
presumably  by  Peter  Cagger,  a  Democratic  politician 
of  Albany  with  a  somewhat  shady  political  reputation. 
Very  likely  the  men  who  were  appointed  were  not  of 
the  very  highest  character,  and  were  more  or  less  un- 
scrupulous. Party  spirit  ran  very  high,  and  partisans 
upon  either  side  were  prepared  to  do  anything  which 
the  law  permitted  to  promote  the  cause  of  their  party. 
Certain  it  is  that  these  agents  and  inspectors,  com- 
missioned by  Governor  Seymour,  and  appointed  by 


NEW  YORK  161 

the  Republican  State  Committee,  went  into  the  hos- 
pitals and  camps,  each  prepared  to  get  votes  for  their 
own  party.  There  were  a  very  large  number  of 
New  York  soldiers  in  the  Army  of  Virginia,  in  the 
defences  of  Washington,  and  in  the  hospitals  in  and 
about  Washington  and  Baltimore.  Very  soon  there 
began  to  be  representations  that  frauds  were  being 
perpetrated  by  these  Democratic  inspectors  and  agents. 

Finally,  on  October  26,  1864,  the  Democratic 
State  agent  of  Baltimore,  and  three  voting  agents 
or  inspectors  commissioned  by  Governor  Seymour, 
were  arrested  at  Baltimore,  and  the  office  which  had 
been  maintained  by  them,  called  the  New  York 
State  Agency,  was  closed.  This  intelligence  was  at 
once  communicated  to  Governor  Seymour  by  tele- 
graph. On  October  27,  the  New  York  State  agent 
in  Washington,  Colonel  Samuel  North,  and  two  others 
of  his  agency  were  arrested  in  Washington.  On 
October  27  the  agents  who  had  been  arrested  in  Balti- 
more were  brought  before  a  military  commission  for 
trial.  They  were  charged  with  falsely  persona  ting 
and  representing  officers  and  soldiers  in  the  United 
States  service,  and  with  falsely  and  fraudulently  sign- 
ing and  forging  names  of  such  officers  and  soldiers; 
and  that  being  authorized  as  agents  of  the  State  of 
New  York,  they  personated  officers  and  soldiers  in 
the  military  service  of  the  United  States,  and  did 
falsely  sign  and  forge  blanks  issued  under  the  author- 
ity of  the  State  of  New  York  for  taking  the  soldiers' 
votes,  for  the  purpose  of  transmitting  the  votes  of  the 
soldiers  to  be  used  at  the  general  election  in  November. 

Ferry,  one  of  the  accused,  pleaded  guilty  to  the 
charges,  and  said  he  forged  some  of  the  names. 
Donahue  desired  time  to  get  counsel,  and  the  case 
was  adjourned  for  that  purpose.  Donahue  at  once 


162  VOTING  IN  THE  FIELD 

telegraphed  to  Peter  Cagger  to  come  and  help  him, 
but  Cagger  did  not  come.  Mr.  Ferry's  confession 
was  very  full  and  complete.  He  said  that  he  signed 
the  names  of  soldiers  on  a  good  many  papers;  he 
could  not  tell  what  names  he  signed;  that  the  papers 
were  in  the  bundles  on  the  table;  that  he  did  not  sign 
the  names  of  officers,  but  Donahue  signed  a  good 
many;  that  there  was  a  large  package  left  with  him 
which  he  had  destroyed,  which  contained  over  200 
forged  blanks.  He  said  that  the  idea  of  forging  these 
papers  was  first  suggested  by  a  man  by  the  name  of 
Maxon,  who  was  a  Democratic  agent  from  New  York; 
that  there  was  also  a  man  by  the  name  of  Newcomb 
who  was  a  lawyer  from  Albany;  and  they  usually 
brought  the  papers  in  a  bundle,  tied  up.  He  said 
he  did  not  know  how  many  forged  papers  were  sent 
off  from  the  office,  but  he  heard  them  say  that  they 
sent  them  off  from  Washington  by  the  dry -goods  box 
full.1 

The  Democratic  papers  immediately  charged  that 
this  was  a  plot  on  the  part  of  the  Republicans  to 
prevent  votes  being  obtained  for  McClellan.  The 
New  York  World  was  especially  vociferous  and  abu- 
sive with  regard  to  the  whole  matter.  I  have  there- 
fore taken  the  reports  of  the  trial  from  the  columns 
of  the  World. 

On  October  28,  Donahue's  trial  was  proceeded 
with  in  Baltimore.  He  said  that  he  did  not  commit 
any  crime  against  the  law  of  the  United  States,  and 
that  whatever  offence  he  had  committed  was  not  an 
offence  which  could  be  tried  by  a  military  commission. 
The  Commission  decided  that,  as  what  was  charged 
was  done  in  places  in  the  control  of  the  army  and 


New  York  World,  October,  28,  1864. 


NEW  YORK  163 

was  an  offence  against  the  United  States,  it  could  try 
the  case  and  proceeded  to  take  testimony.  Witnesses 
were  sworn  and  testified  to  finding  the  forged  papers 
in  the  office  of  Donahue,  and  to  Donahue's  and  Ferry's 
statements  about  what  they  were  doing.  One  of 
them  testified  that  Newcomb,  the  lawyer  from 
Albany,  sat  at  one  of  the  tables  filling  out  the  de- 
scriptive portions  of  the  blanks,  and  Donahue  was 
writing  the  names  of  the  officers  who  purported  to 
take  the  affidavits.  The  blanks  were  produced,  and 
they  all  bore  the  signature  of  C.  J.  Arthur,  Captain, 
etc.,  as  the  officer  in  whose  presence  the  affidavit  was 
made.  Full  sets  of  powers  of  attorney  all  filled  up 
and  ready  to  be  deposited  as  soon  as  the  ticket  was 
inserted,  were  produced.  One  package  of  thirty 
blanks  in  which  the  names  had  been  forged  was 
identified  as  the  work  of  Donahue.  A  package  of 
fifty-five  was  identified,  which  were  to  be  sent  to 
the  Commissary  of  Subsistence  of  the  State  of  New 
York.  There  was  also  a  letter  from  the  Commissary 
to  Donahue.  There  was  a  letter  to  the  Commissary 
in  New  York  (a  Democratic  politician)  from  Donahue, 
saying,  "I  send  with  this  note  a  number  of  ballots 
for  your  county.  I  made  out  a  number  from  the 
list  you  sent  me.  I  will  also  send  a  package  put  up 
by  Mr.  Ferry,  State  agent,  and  you  will  find  a  note 
from  him  explaining  things.  I  guess  you  have  enough. 
Fearing  that  you  may  not  I  enclose  envelopes  and 
powers  of  attorney  sworn  to.  You  can  fill  them  up 
for  Columbia,  or  any  other  county.  You  can  fill 
them  up  as  well  as  we  can  here.  If  you  want  names 
of  enlisted  persons,  ascertain  them  from  the  Supervi- 
sor's list  of  any  county.  You  can  procure  large  enve- 
lopes for  attorneys'  names  at  Albany.  Put  in  some 
good  names  for  attorneys." 


164  VOTING  IN  THE  FIELD 

A  roll  purporting  to  be  a  list  of  sick  and  wounded 
soldiers  under  treatment  at  the  Jarvis  Hospital  in 
Baltimore  was  put  in.  It  contained  about  400 
names.  The  witness  testified  that  Mr.  Ferry  said 
that  "dead  or  alive  they  would  all  cast  a  good  vote.'* 
There  was  also  a  letter  found  in  Donahue's  posses- 
sion from  the  Democratic  sheriff  of  Albany,  New 
York,  saying  that  he  had  sent  Newcomb  to  help, 
and  that  he  saw  Mr.  Cagger  and  showed  him  his 
telegram  from  Donahue,  and  if  he  wanted  more  help 
he  would  send  some  one.  Then  he  said: 

"As  to  sending  the  proxies,  you  had  better  send  them 
by  Mr.  Wallace.  He  always  calls  at  the  State  agency 
when  coming  this  way.  Send  them  as  fast  as  you  can  get 
them,  first  to  me.  All  is  well  here,  and  we  are  confident 
of  complete  success.  It  is  not  necessary  to  say  that  all 
here  have  entire  confidence  in  your  skill  and  ability,  and 
hope  you  will  like  your  help." 

Newcomb,  who  was  also  an  agent  from  New  York, 
and  a  party  to  the  fraud  although  not  under  arrest, 
also  testified.1 

The  Commission  found  Donahue  and  Ferry  guilty, 
and  they  were  sentenced  to  imprisonment  for  life. 
The  sentence  was  approved  by  President  Lincoln.2 

The  matter  was  first  brought  to  the  attention 
of  the  Secretary  of  War  by  a  communication  from 
Judge  Advocate  Holt,  on  October  26,  1864,  who 
enclosed  a  report  and  supplemental  reports  with 
accompanying  papers  of  Major  General  Wallace, 
and  Colonel  Seward,  Special  Judge  Advocate,  under 
dates  of  October  23  and  25.  Judge  Holt  said: 


1  New  York  World,  October  29,  1864. 
1  New  York  World,  November  2,  1864. 


NEW  YORK  165 

"The  facts  which  they  present  are  of  the  gravest 
import,  disclosing  as  they  do  a  carefully  matured  plan 
for  defrauding  the  soldiers  of  the  State  of  New  York  now 
in  the  field  of  their  votes  at  the  approaching  Presidential 
election.  The  character  of  the  conspiracy  is  so  fully 
exhibited  in  the  papers  submitted  that  it  is  unnecessary 
to  enter  upon  any  examination  of  its  details." 

It  was  upon  this  presentation  that  Stanton  author- 
ized the  arrest  of  the  Democratic  State  agents  in 
Baltimore  and  in  Washington.  Those  who  were 
arrested  in  Washington  appear  to  have  had  about 
thirty-six  hours'  notice  by  reason  of  the  arrests  made 
in  Baltimore,  and  no  papers  were  found  In  Washing- 
ton to  implicate  them. 

Governor  Seymour  commissioned  Amasa  J.  Par- 
ker, ex-Judge  of  the  Supreme  Court,  and  two  others 
to  proceed  to  Washington,  to  inquire  into  the  arrest, 
and  take  such  action  as  would  "vindicate  the  laws 
of  New  York,  and  the  rights  and  liberties  of  its 
citizens."  These  gentlemen  went  to  Washington, 
which  they  reached  on  October  31.  They  obtained 
a  preliminary  interview  with  the  Secretary  of  War, 
and  requested  that  the  blanks  in  the  office  of  the 
New  York  agency  might  be  handed  to  an  agent  of 
the  State  of  New  York  to  be  used;  and  that  the 
agents  might  be  permitted  to  take  further  soldiers' 
ballots;  and  that  a  military  officer  of  New  York 
might  be  designated  to  attend  at  the  New  York 
office  to  administer  oaths  to  voters.  They  also 
requested  a  permit  to  see  Colonel  North  and  the  other 
persons  in  custody,  and  to  make  provision  for  fur- 
nishing them  counsel.  The  Secretary  granted  these 
requests  and  the  commissioners  visited  the  prisoners. 
They  reported  that  they  had  found  North  and  Cohn 
in  close  confinement  in  the  Carrol  prison,  where  they 


166  VOTING  IN  THE  FIELD 

were  confined  in  one  room,  which  they  had  not  been 
permitted  to  leave  during  the  four  days  they  had  been 
prisoners.  They  said  that  they  had  been  supplied 
with  meagre  and  coarse  rations  to  be  eaten  in  the 
room;  that  they  had  but  one  chair,  and  slept  three 
of  the  nights  of  their  confinement  upon  a  sack  of 
straw  upon  the  floor;  that  all  communication  between 
them  and  the  outer  world  had  been  denied  them; 
that  no  friend  had  been  allowed  to  see  them  until 
the  Commissioners  came;  that  they  had  not  been 
permitted  to  see  a  newspaper  and  that  they  were 
ignorant  of  the  cause  of  their  arrest. 

The  Commissioners  complained  to  the  Judge 
Advocate  and  to  the  Secretary  of  War  with  regard 
to  this  treatment,  and  reported  that  they  were  happy 
to  learn  at  their  subsequent  visits  to  the  prisoners 
that  their  condition  was  made  more  tolerable,  but 
they  said  that  at  neither  of  their  visits  were  they 
permitted  to  see  the  prisoners  except  in  the  presence 
of  an  officer  of  the  prison.  The  Commissioners 
next  made  application  to  the  Judge  Advocate  Gen- 
eral for  a  copy  of  the  charges  against  North,  and  were 
told  what  they  were.  They  then  addressed  a  long 
communication  to  the  Secretary  of  War,  which  de- 
manded the  release  of  North  and  the  others  inter- 
ested, "because  if  there  have  been  irregularities  or 
wrongful  acts  on  their  part,  they  were  irregularities 
and  wrongful  acts  against  the  State  of  New  York, 
and  were  not  offences  against  any  law  of  Congress,  or 
any  rule  or  order  of  the  War  Department,  made  by 
authority  of  law."  They  said:  "We  claim  that  the 
acts,  if  offensive  at  all,  are  only  offensive  against  the 
laws  of  the  State  of  New  York,  and  punishable  by 
those  laws  only." 

This  communication  which  was  in  the  nature  of 


NEW  YORK  167 

a  brief  upon  the  law  was  referred  to  the  Judge  Advo- 
cate General,  and  he  was  asked  to  release  the  arrested 
persons  on  parol,  but  he  declined  to  do  so,  and  pro- 
posed to  proceed  with  the  trial.  The  Commissioners 
also  had  an  interview  with  President  Lincoln.  Amasa 
J.  Parker,  Jr.,  son  of  Judge  Parker,  now  Gen.  Parker 
of  Albany,  was  secretary  of  the  Commissioners,  and 
was  with  them.  He  tells  me  that  President  Lincoln 
received  the  Commissioners  very  cordially,  heard  what 
they  had  to  say,  and  told  them  he  would  examine 
into  the  matter  of  the  arrests  and  see  that  no  in- 
justice wTas  done;  but  he  did  not  promise  anything, 
and  while  the  interview  was  very  pleasant  it  was 
not  entirely  satisfactory  to  the  Commissioners.  The 
Commissioners  then  went  to  Albany  and  reported  to 
the  Governor.1 

The  trial  of  North  and  his  associates  was  post- 
poned at  their  request  from  time  to  time  until  Jan- 
uary 6,  1865,  when  North,  Cohn  and  Jones  were 
acquitted  by  the  Commission.2 

It  is  impossible  to  avoid  the  conclusion  that  some 
of  these  Democratic  State  agents  did  engage  in  very 
serious  frauds  in  regard  to  soldiers'  votes.  The  proof 
of  their  conduct  at  Baltimore  cannot  be  questioned. 
What  they  did  in  Washington  was  not  proved,  it 
may  be  because  the  proof  was  destroyed  by  them 
before  they  wTere  arrested,  and  it  may  be  that  Colo- 
nel North,  who  was  a  man  of  high  character  and  a 
member  of  Governor  Seymour's  staff,  was  entirely 
innocent.  It  is  fair  to  assume  that  he  was.  But 
the  fact  remains  that  the  Governor  of  the  State  of 
New  York,  at  the  request  probably  of  Peter  Cagger's 
State  Committee,  commissioned  a  lot  of  irresponsible, 

1  Horatio  Seymour,  McCabe,  pp.  192,  195. 
1  Seymour  and  Blair,  Croly,  pp.  132,  136. 


168  VOTING  IN  THE  FIELD 

unscrupulous  men  as  inspectors,  to  get  the  vote  of 
New  York  soldiers  for  McClellan,  and  when  they 
could  not  get  the  votes  for  McClellan  they  forged 
them. 

All  this  was  rendered  possible  by  the  complicated 
and  foolish  law  wrhich  the  State  of  New  York  passed 
for  proxy  voting.  It  was  full  of  opportunities  for 
mistake  and  for  fraud.  It  required  too  much  to  be 
done  and  done  accurately  to  make  it  work  well. 
Under  it  nobody  can  tell  how  the  soldiers  did  vote. 
The  votes  which  were  deposited  by  the  proxies  were 
like  other  votes,  and  were  counted  like  other  votes, 
and  from  whom  they  came,  and  whether  the  person 
who  cast  them  was  entitled  to  cast  them,  was  very 
difficult  to  ascertain.  The  Democrats  undoubtedly 
expected  a  very  large  number  of  soldiers  from  New 
York  to  vote  for  McClellan.  It  is  difficult  however 
to  believe  that  the  soldier  from  New  York  was  very 
different  from  the  soldier  from  Ohio  or  Pennsylvania, 
and  it  is  fair  to  assume  that  the  percentage  of  votes 
for  McClellan  in  New  York  did  not  much  exceed  the 
percentage  in  Ohio  or  Pennsylvania.  The  law  pro- 
vided that  the  envelopes  in  which  the  ballots  were 
returned  should  be  preserved,  but  even  if  you  could 
tell  anything  from  these  envelopes,  they  are  now 
destroyed.  They  were  burned  in  the  fire  which  de- 
vastated the  Albany  Capitol  in  March,  1911. 

But  the  most  cogent  evidence  of  a  conspiracy 
to  procure  false  and  forged  votes  is  found  in  the 
defence  of  the  New  York  State  agents  by  the  Judge 
Advocate  General  of  New  York.  He  was  importuned 
to  present  a  defence  in  the  papers  of  New  York, 
and  did  so  at  great  length.  Reading  this  paper 
after  a  lapse  of  half  a  century  anybody  will  be  satis- 


NEW  YORK  169 

fied  that  he  felt  that  these  agents  had  been  guilty, 
not  only  of  gross  irregularities,  but  of  gross  frauds. 

This  paper  which  is  found  in  the  New  York 
World  of  November  1,  1864,  is  dated  October  29, 
1864.  It  is  a  remarkable  document.  It  begins  by 
saying,  it  has  been  suggested  to  him  that  it  is  his 
duty  to  write  the  letter,  and  says  that  he  yields  to 
this  suggestion  the  more  readily  from  the  fact  that 
the  Judge  Advocate  General  of  the  United  States 
has  been,  according  to  the  "abolition  journals," 
the  prime  mover  in  these  proceedings.  In  the  next 
sentence  he  speaks  of  "the  conspirators  at  Washing- 
tion,"  meaning  the  agents  of  the  Government,  who 
caused  the  arrests.  Then  he  says  "the  watch  of 
the  abolition  agents  has  been  complete,"  and  speaks 
of  the  camps  and  hospitals  as  "places  governed  by  a 
military  despotism,"  where  "government  spies  and 
pimps  are  to  be  met  at  every  corner."  Then  he 
uses  the  stock  argument,  the  only  real  reply  that 
could  be  made,  and  says,  "Suppose  all  the  charges 
are  true,  what  has  a  'military  commission'  of  the 
United  States  to  do  with  them?"  The  statute  under 
which  the  voting  took  place  was  "framed  and  passed 
by  the  abolitionists  themselves"  and  provided  proper 
punishment  for  violation  of  it. 

And,  when  after  pages  of  this  sort  of  talk,  he 
comes  to  the  main  case,  he  says,  Donahue  "admitted 
that  he  had  signed  to  certain  voting  papers  a  ficti- 
tious name  as  a  certifying  officer."  He  then  falls 
into  the  old  style,  and  speaks  of  the  military  com- 
mission as  a  "shameless  court,  with  an  insensate 
prosecuting  officer,  and  with  corrupt  stool-pigeons 
as  witnesses."  Then  as  an  excuse  for  Donahue's 
signing  a  fictitious  name  as  a  certifying  officer,  he 
says  that  around  the  hospitals  the  officers  were 


170  VOTING  IN  THE  FIELD 

"mostly  abolition  tools."  Then  he  comes  to  the 
persons  who  confessed  and  testified,  —  Ferry,  Wood 
and  Newcomb.  He  says  that  two  of  these  were 
"two  abolition  stool-pigeons."  Ferry,  who  held  the 
commission  of  Governor  Seymour  to  get  the  Demo- 
cratic votes,  "is  manifestly  a  sanctimonious  villain. 
He  has  always  been  an  abolitionist."  Wood  is  "an 
abolitionist  from  the  neighborhood  of  old  John 
Brown's  home."  He  was  sent  out  by  an  "abolitionist 
committee,"  and  "is  one  of  the  most  paltry  stool- 
pigeons  ever  known."  The  evidence  proves,  he 
says,  "a  base  and  infamous  conspiracy  on  the  part 
of  the  abolition  cabal  at  Washington."  Again  he 
speaks  of  "Mr.  Lincoln's  stool-pigeons,"  and  of  the 
Judge  Advocate  General  of  the  United  States  as 
"the  special  tool  in  the  whole  of  this  dirty  business." 
And  so  on,  page  after  page  of  abuse,  calling  names 
and  saying  that  the  "abolition  conspirators  at  Wash- 
ington" were  the  only  persons  to  blame.  It  is  im- 
possible to  read  this  paper  without  not  only  being 
ashamed  of  the  Judge  Advocate  General  of  New  York 
who  wrote  it,  but  also  feeling  that  he  knew  the  agents 
whom  he  assumed  to  defend  had  been  guilty  not  only 
of  gross  irregularities  but  of  gross  frauds. 


CHAPTER  XVIII 

NEVADA 

THE  Constitution  of  Nevada  was  framed  by  a 
committee  of  delegates  appointed  under  the  act 
of  Congress  approved  March  21,  1864,  which  pro- 
vided that  the  Constitution  should  be  submitted  to 
the  people  of  the  Territory  of  Nevada.  The  ordi- 
nance submitting  the  Constitution  to  the  people  was 
passed  by  the  Convention  on  the  twenty -eighth  of 
July,  1864.  This  ordinance  contained  provisions  for 
taking  the  vote  of  the  electors  of  the  territory  who 
were  in  the  army.  It  provided  that  the  Adjutant 
General  should  make  a  list  of  the  names  of  all  electors 
who  were  in  the  army,  stating  the  number  of  the 
regiment,  battalion,  squadron  or  battery  to  which  he 
belonged,  and  the  township  or  county  of  his  residence 
in  the  territory.  The  Governor  was  to  make  a 
separate  list  of  electors  in  each  regiment,  battalion, 
squadron  or  battery,  and  send  it  to  the  commanding 
officer  of  each  regiment,  battalion,  squadron  and 
battery.  On  election  day  the  vote  was  to  be  taken 
under  the  direction  of  the  commanding  officers,  and 
the  ballot  was  to  contain,  "Constitution  yes,"  or 
"Constitution  no,"  or  words  of  similar  import. 

There  were  then  elaborate  provisions  for  checking 
up  the  votes  for  the  Constitution,  and  the  votes  for 
the  election  of  State  officers,  representatives  in  Con- 
gress and  three  presidential  electors.  The  returns 
were  to  be  made  up  and  certified  in  duplicate  and 
transmitted  to  the  Governor.  Proper  blanks  were  to 


172  VOTING  IN  THE  FIELD 

be  prepared  by  the  Secretary  of  State  for  all  this. 
And  then  the  ordinance  provided  that 

"The  provisions  of  this  ordinance  in  regard  to  the 
soldiers'  vote  shall  apply  to  future  elections  under  this 
Constitution,  and  be  in  full  force  until  the  legislature  shall 
provide  by  law  for  taking  the  votes  of  citizens  of  said 
territory  in  the  army  of  the  United  States."  1 

Under  this  provision  the  soldier  vote  of  Nevada 
at  the  presidential  election  of  1864  was  taken. 

Nevada  was  admitted  a  State  on  October  31, 
1864.  In  its  Constitution  it  was  provided  that  "the 
right  of  suffrage  shall  be  enjoyed  by  all  persons 
otherwise  entitled  to  the  same,  who  may  be  in  the 
military  or  naval  service  of  the  United  States,  and 
the  payment  of  a  poll  tax  or  registration  of  such 
voters  shall  not  be  required  as  a  condition  to  the 
right  of  voting;"  also  that,  "provision  shall  be  made 
by  law  regulating  the  manner  of  voting  and  holding 
elections,  and  making  returns  of  such  elections.2 

The  Governor  in  his  message  to  the  Legislature  in 
January,  1866,  said  that  provision  should  be  made  for 
the  soldiers  to  participate  in  all  elections,  and  for  the 
return  and  canvass  of  their  votes  as  contemplated 
by  Section  3,  of  Article  2  of  the  Election  Ordinance 
of  the  Constitution.  This  section  provided  that  the 
right  of  suffrage  should  be  enjoyed  by  all  persons 
otherwise  entitled  to  the  same  who  might  be  in  the 
military  or  naval  service  of  the  United  States,  and 
that  provision  should  be  made  by  law  with  regard  to 
the  manner  of  voting,  holding  elections,  and  making 
returns  of  such  elections  wherein  other  provisions  are 
not  contained  in  this  Constitution. 


1  Statutes  of  Nevada,  1864,  p.  31. 

1  Nevada  Constitution,  1864,  Sec.  3,  Art.  2. 


NEVADA  173 

March  9,  1866,  an  act  was  passed  by  the  Legisla- 
ture relating  to  elections  and  the  manner  of  taking 
and  contesting  the  same.  This  act  contained  seven 
sections  with  regard  to  taking  the  vote  of  electors 
who  might  be  in  the  army.  They  are  not  substantially 
different  from  the  provisions  in  the  ordinance.1 

1  Statutes  of  Nevada,  1866,  p.  215. 


CHAPTER  XIX 

CONNECTICUT 

THE  Legislature  of  Connecticut  met  in  special 
session,   December,    1862,   for   war   legislation. 
Governor  Buckingham  in  his  message,  said: 

"The  many  thousand  electors  now  in  the  military  ser- 
vice of  the  Government,  have  given  full  proof  of  their 
deep  interest  in  the  permanency  of  our  institutions,  and 
the  conduct  of  public  affairs;  and  instead  of  having  for- 
feited any  of  the  privileges  of  freemen,  are  entitled  to  your 
favorable  consideration  in  preserving  the  free  exercise  of 
those  rights.  They  are  held  by  national  authority  in 
bodies  much  larger  than  the  average  number  of  electors 
in  our  towns,  to  the  performance  of  important  public  ser- 
vices, which  appertain  to  the  highest  liberties  of  every 
citizen,  and  thus  held,  have  now  no  opportunity  to  express 
their  preference  for  men  who  shall  represent  their  views 
in  the  administration  of  the  Government,  or  to  give 
efficacy  to  their  opinions  respecting  the  policy  of  the 
State. 

"If,  by  the  adoption  of  any  wise  and  practical  plan, 
this  privilege  can  be  preserved,  there  can  be  no  principle 
of  justice  or  equity  which  would  deprive  them  of  a  right, 
so  cardinal  in  a  representative  government,  as  that  of 
participating  in  the  election  of  rulers."  1 

On  the  twenty-fourth  of  December  they  passed  a 
carefully  guarded  and  elaborate  act  for  taking  the 
soldiers'  vote  in  the  field,  and  on  the  same  day  they 
passed  another  act  directing  the  Governor  to  request 

1  Public  Documents  of  the  Legislature  of  Connecticut,  Special  Session, 
December,  1862,  and  May  Session,  1863,  Hartford  1863,  p.  9. 


CONNECTICUT  175 

the  Judges  of  the  Supreme  Court  to  meet  and  con- 
sider and  give  their  opinion  in  writing  upon  the 
constitutionality  of  the  act  on  or  before  the  first 
day  of  January,  1863,  and  provided  that  if  the  Judges 
should  advise  the  Governor  that  the  act  was  un- 
constitutional on  or  before  the  first  day  of  January, 
the  Governor  should  immediately  make  proclama- 
tion of  such  fact,  and  "thereupon  all  persons  upon 
whom  any  duties  were  imposed  by  said  act  shall  be 
released  from  all  obligation  to  perform  the  same."  l 

The  Judges  did  meet  and  advised  the  Governor 
in  writing  that  they  were  "of  the  opinion  that  the 
provisions  of  the  act  relating  to  the  election  of  State 
officers,  senators  and  representatives  in  the  General 
Assembly  were  unconstitutional."  And  thereupon 
the  Governor  issued  his  proclamation  as  provided 
by  the  act.2 

The  Judges  said  among  other  things :  — 

"In  relation  to  the  time,  place  and  manner  of  holding 
elections,  the  constitutions  of  the  several  States  differ. 
In  some  of  them  all  three  are  prescribed  with  that  par- 
ticularity which  forbids  all  action  by  the  Legislature.  In 
others  neither  are  prescribed,  but  the  qualification  re- 
quired of  the  voters  is  fixed,  and  the  power  to  regulate 
the  time,  place  and  manner  committed  to  the  Legislature; 
and  in  such  States  the  reception  of  votes  out  of  the  State 
may  be  constitutionally  authorized." 

They  then  considered  the  Constitution  of  the 
State  of  Connecticut  and  the  history  of  its  adoption, 
and  said  that  it  prescribed  "exclusively  and  in  every 
essential  detail,  when,  where,  and  how  the  elective 
franchise  shall  be  exercised."  They  therefore  held 

1  Public  Acts  of  Conn.  Special  Session,  1862,  pp.  15,  32,  36. 
1  Conn.  Supreme  Court  Repts.  Vol.  30,  p.  591. 


176  VOTING  IN  THE  FIELD 

that  the  act  was  unconstitutional  in  respect  to  the 
election  of  Governor,  treasurer,  secretary,  comptroller, 
and  members  of  the  General  Assembly.1  They  did 
not  say  anything  about  the  validity  or  non-validity 
of  the  act  when  confined  to  voting  for  representatives 
in  Congress  and  presidential  electors. 

To  amend  the  Constitution  required  that  a  ma- 
jority of  the  House  of  Representatives  should  vote 
in  favor  of  the  proposed  amendment,  and  that  the 
amendment  should  then  be  continued  to  the  next  Gen- 
eral Assembly  and  be  published.  Then,  if  two-thirds 
of  each  House  at  the  next  session  of  the  Assembly 
should  approve  the  amendment  by  a  yea  and  nay 
vote,  the  amendment  should  be  submitted  to  the 
people  at  town  meetings  held  for  that  purpose,  and  if 
approved  by  a  majority  of  the  voters  at  such  meetings, 
the  amendment  should  be  "valid  to  all  intents  and 
purposes  as  a  part  of  the  Constitution." 

At  the  Special  Session  of  the  Legislature  in  Novem- 
ber, 1863,  called  by  Governor  Buckingham  to  consider 
military  matters,  he  said  in  his  message: 

"Many  citizens  whose  views  are  entitled  to  the  high- 
est consideration,  entertain  the  opinion  that  those  who 
are  now  in  the  military  service  of  the  government,  or  who 
shall  hereafter  enter,  either  by  volunteering  or  by  draft, 
should  not  be  deprived  of  their  rightful  suffrage;  and  that 
it  is  the  duty  of  the  General  Assembly  to  adopt  measures 
by  which  they  may  exercise  this  privilege.  Their  increas- 
ing numbers  under  the  recent  call  for  troops  render  this 
duty  still  more  apparent.  My  views  on  this  subject  are 
too  well-known  to  be  repeated  here." 

This  portion  of  the  message  was  referred  to  the 
Judiciary  Committee  in  the  House,  and  on  November 


1  House  Journal,  Special  Session,  November,  1863,  p.  12. 


CONNECTICUT  177 

10th    that    Committee    reported    an    amendment    of 
the  Constitution,  which  provided  that 

"Every  elector  of  this  State  who  shall  be  in  the  military 
service  of  the  United  States,  shall,  when  absent  from  this 
State  because  of  such  service,  have  the  same  right  to  vote 
in  any  election  of  State  Officers,  senators  and  representa- 
tives in  the  General  Assembly,  sheriff,  judges  of  probate, 
representatives  in  Congress,  and  electors  of  president 
and  vice-president  of  the  United  States,  as  he  would  if 
present  at  the  time  appointed  for  such  election,  in  the 
town  in  which  he  resided  at  the  time  of  his  enlistment  into 
such  service.  The  General  Assembly  shall  prescribe  by 
law,  in  what  manner  and  at  what  time,  the  votes  of  elec- 
tors absent  from  this  State  in  the  military  service  of  the 
United  States,  shall  be  received,  counted,  returned,  and 
canvassed."  l 

In  1863  the  General  Assembly  adjourned  to  January 
12,  1864,  when  its  session  of  four  days  was  mostly  spent 
upon  the  proposed  amendment.  It  was  amended  so 
as  to  be  limited  "to  the  present  rebellion."  "At 
the  special  session  of  the  Winter  before,  the  Demo- 
cratic members  had  opposed  giving  the  ballot  to  the 
soldiers  in  the  field,  on  the  ground  that  it  was 
unconstitutional.  Now  that  it  was  proposed  to 
amend  the  Constitution,  they  resisted  it  on  other 
grounds.  Some  of  them  spoke  of  the  soldiers  as 
"the  armed  cohorts  of  despotism,"  and  they  said  that 
"the  effect  of  their  voting  was  like  the  disgraceful 
sale  of  the  imperial  purple  by  the  praetorian  guard 
in  the  latter  days  of  the  Roman  Empire."  2 

It  was  proposed  to  amend  the  amendment  by  strik- 
ing out  the  words  "State  officers,"  and  the  amendment 
was  decided  in  the  negative,  by  a  vote  of  76  yeas  to 


1  House  Journal,  Special  Session,  1863,  pp.  44,  94,  97,  98,  105,  106. 

2  Connecticut  during  the  Rebellion,  629. 


178  VOTING  IN  THE  FIELD 

102  nays.  It  was  then  moved  that  the  amendment  be 
postponed  to  the  next  session  of  the  Legislature,  which 
was  decided  in  the  negative.  It  was  then  moved 
that  the  House  adjourn,  which  was  negatived.  There 
was  another  motion  to  adjourn,  which  was  negatived. 
The  discussion  of  the  resolution  continued,  and  it  was 
finally  laid  upon  the  table. 

On  January  15  the  amendment  was  taken  up  and 
adopted  by  a  party  vote  of  117  yeas  to  77  nays. 
The  Senate  was  not  required  to  act  upon  the  matter 
that  session.  The  normal  Democratic  vote  in  the 
House  was  eighty-one,  and  the  Republican  one  hun- 
dred and  fifty -four,  with  two  "War  Democrats." 
In  the  Senate  there  were  nineteen  Republicans  and 
two  Democrats. 

At  the  regular  session  in  May,  186>3,  an  amendment 
was  reported  by  the  Committee  on  Constitutional 
Amendments  of  the  Senate  on  May  19,  1863,  and 
on  the  same  day  it  was  adopted  by  a  vote  of  18  to  2. 
On  the  following  day  the  name  of  Senator  Kendrick 
was  permitted  to  be  added  as  voting  "No." 

January  1864,  the  amendment  was  spoken  of  by 
the  Governor  in  his  message  as  follows: 

"No  argument  can  be  necessary  to  urge  a  measure 
which  bears  upon  its  face  such  evidence  of  its  justice. 
Free  men  who  sustain  and  protect  the  government  by 
baring  their  bosoms  to  the  deadly  shafts  of  its  enemies, 
should  have  an  opportunity  to  express  an  opinion  in  re- 
spect to  its  policy  and  the  character  and  qualifications 
of  its  officers." 

A  bill  to  enable  qualified  voters  to  vote  in  the 
field  was  introduced  in  the  House  on  the  ninth  day 
of  May,  1864.  On  May  20,  the  joint  select  committee 
on  constitutional  amendments  recommended  the  pas- 


CONNECTICUT  179 

sage  of  the  constitutional  amendment  as  received  from 
the  Senate,  which  had  passed  the  same,  and  the 
House  accepted  the  report  of  the  committee.  The 
amendment  was  laid  on  the  table  and  ordered  to  be 
printed.  The  question  of  the  passage  of  the  amend- 
ment was  considered  on  May  26,  and  there  were  153 
votes  for  it  and  71  against  it,  14  were  absent  or  not 
voting.  The  speaker  announced  the  vote  and  declared 
the  amendment  lost,  as  two-thirds  of  the  whole  House 
had  not  voted  in  the  affirmative.  Mr.  Platt  of 
Meriden  appealed  from  the  decision  of  the  speaker 
upon  the  vote,  and  Mr.  Pratt  of  Hartford  was  allowed 
to  have  his  vote  recorded  in  the  affirmative,  his 
name  having  been  omitted  by  mistake  on  the  call 
of  the  roll. 

On  May  27,  the  House  voted  upon  the  amendment, 
54  yeas  to  132  nays,  a  large  number  of  the  mem- 
bers being  absent  or  not  voting.  Whereupon  the 
speaker  announced:  "Under  the  ruling  of  the  House 
it  becomes  the  duty  of  the  Chair  to  declare  the 
amendment  has  passed  by  the  requisite  constitutional 
majority." 

On  June  15,  1864,  two-thirds  of  each  House 
having  approved  of  the  amendment,  the  Legislature 
provided  for  a  meeting  of  the  electors  of  the  State 
on  the  third  Monday  in  August,  1864,  to  consider 
the  amendment,1  when  it  was  adopted  by  a  popular 
majority  of  14,231.  It  was  by  its  terms  to  "become 
inoperative  and  void  upon  the  termination  of  the 
present  war." 

On  July  1st,  1864,  the  act  securing  the  elective 
franchise  to  soldiers  in  the  field  was  passed,  without 
a  yea  and  nay  vote.2  This  act  provided  that  in  case 

1  Public  Acts  of  Connecticut,  1863-4,  p.  24. 

2  Senate  Journal,  1863,  pp.  114,  117,  132;  Ibid.,  1864,  p.  27. 


180  VOTING  IN  THE  FIELD 

of  the  adoption  by  the  people  of  the  proposed  amend- 
ment to  the  Constitution  of  the  State  (and  then 
the  amendment  was  accurately  set  forth),  every 
elector  so  absent  from  the  State  on  military  service 
should  be  entitled  to  vote  in  the  manner  thereafter 
provided.  The  manner  provided  was  for  the  appoint- 
ment by  the  Governor  of  commissioners  who  were 
to  take  to  the  regiments  and  furnish  each  soldier 
with  blanks  to  enable  him  to  vote,  and  that  the 
soldier  should  deposit  his  ballot  in  an  envelope 
which  he  should  seal  and  deliver  to  the  commis- 
sioners. The  commissioners  should  take  the  bal- 
lots and  immediately  on  their  return  to  Connecticut, 
transmit  them  to  the  town  clerks  of  the  various 
towns,  and  thereafter  the  votes  should  be  canvassed, 
counted  and  declared  in  the  same  manner  as  other 
votes.1 

As  the  ballot  was  to  be  sealed  up  in  an  envelope 
by  the  soldier  who  delivered  it  to  the  Commissioner 
and  by  the  Commissioner  transmitted  to  the  Town 
Clerk  unopened,  the  intent  evidently  was  to  make 
the  ballot  secret.  Apparently  this  was  done  for  there 
is  no  record  to  be  found  showing  how  Connecticut 
soldiers  voted,  although  it  is  known  that  they  did 
vote  in  1864. 

The  Connecticut  Act  of  1864  is  Chapter  III  of 
the  General  Statutes  of  1866.  A  note  is  appended 
which  states  that,  "As  the  war  has  now  (October) 
virtually  terminated,  this  chapter  may  be  deemed 
superfluous,  but  as  some  regiments  have  not  yet 
been  mustered  out,  it  is  retained."  This  appears  to 
be  the  last  of  the  Statute.  But  the  Soldiers'  Voting 
Amendment  to  the  Constitution  is  now  carried  as 


1  House  Journal,  1864,  pp.  40,  86,  92,  104,  107,  293.     Public  Acts  of  Con- 
necticut, 1864,  p.  51. 


CONNECTICUT  181 

Article  13  of  the  amendments  to  the  Constitution  of 
1818.  It  became  inoperative  and  void  upon  the 
termination  of  the  civil  war,  but  there  appears  to 
be  no  method  of  getting  it  out  of  the  Constitution, 
except  by  amendment. 


CHAPTER  XX 

RHODE  ISLAND 

RHODE  ISLAND  has  always  been  singularly 
conservative  with  regard  to  the  franchise.  At 
the  time  of  the  Civil  War  every  native-born  citizen 
was  required  to  pay  a  registration  tax  or  to  perform 
military  service  for  the  State  in  order  to  vote  for 
elective  officers,  such  as  governor,  and  senators  and 
representatives,  members  of  the  town  council,  etc., 
but  a  naturalized  citizen  was  also  required  to  have 
real  estate  of  the  value  of  $134,  at  least,  in  order  to 
vote  for  such  elective  officers.  And  no  citizen,  na- 
tive or  naturalized,  could  vote  for  members  of  the 
Council  in  Providence,  or  upon  any  proposition  to 
impose  a  tax  or  for  the  expenditure  of  money,  unless 
he  had  paid  a  tax  upon  property  valued  at  least  at 
$134. 

The  result  of  this  was  a  marked  discrimination 
against  naturalized  citizens.  They  were  required  to 
have  a  property  qualification  to  vote  at  all,  while  a 
native  citizen  was  only  required  to  have  that  prop- 
erty qualification  in  order  to  vote  to  raise  or  expend 
money.  There  was  also  a  constitutional  registry 
tax  required  of  all  citizens  as  a  prerequisite  for  vot- 
ing. The  Constitution  also  required  all  elections  to 
be  held  at  town  or  city  or  ward  meetings,  and  that 
the  result  should  be  announced  in  the  meeting. 

It  was  obviously  necessary  that  the  Constitution 
should  be  amended  if  soldiers  were  to  be  permitted 
to  vote  in  the  field,  but  nothing  was  done  about  it 


RHODE   ISLAND  183 

until  the  regular  session  in  January,  1864.  There 
were  many  aliens  who  had  enlisted  and  were  serving 
in  the  army  and  who  had  either  been  naturalized  or 
applied  for  naturalization,  who  could  not  vote  at  all 
without  a  property  qualification.  There  was  a  de- 
sire that  this  qualification  should  be  abolished  as  to 
them  if  they  were  honorably  discharged  from  the 
army.  There  were  also  many  persons  who  thought 
that  the  registration  tax  should  be  changed  or 
abolished. 

To  amend  the  Constitution  required  that  the 
General  Assembly  should  propose  an  amendment  by 
a  majority  vote  of  all  the  members  elected  to  each 
House.  The  amendment  must  then  be  published  in  the 
newspapers,  and  printed  copies  sent  with  the  names  of 
all  the  members  who  had  voted  on  them,  with  the 
yeas  and  nays,  to  all  the  town  and  city  clerks  in 
the  State.  The  amendment  must  then  be  inserted 
in  the  warrants  for  the  next  annual  town  and  city 
meetings,  and  the  clerks  must  read  the  amendment  to 
the  electors  assembled,  with  the  names  of  all  the 
representatives  and  senators  who  had  voted  thereon, 
with  the  yeas  and  nays,  before  the  election  of  sena- 
tors and  representatives  should  be  had.  If  a  ma- 
jority of  all  the  members  elected  to  each  House  at 
said  annual  meeting  should  approve  any  amendment 
thus  made,  the  amendment  must  be  published  and 
submitted  to  the  voters  in  the  mode  provided  in  the 
act  of  approval,  and  if  then  approved  by  three-fifths 
of  the  electors  of  the  State  present  and  voting 
thereon  in  town  meeting,  it  should  become  a  part  of 
the  Constitution. 

At  the  regular  session  in  January,  1864,  Governor 
Smith  said  in  his  annual  message  to  the  Legislature: 
"The  legislative  franchise  which  has  been  extended 


184  VOTING  IN  THE  FIELD 

to  the  soldiers  of  other  states  should  receive  your 
attention,  for  certainly  a  man  should  not  be  deprived 
of  this  privilege  because  he  leaves  his  state  to  defend 
the  homes  of  those  who  remain."  1 

On  January  14,  a  resolution  was  adopted  by  the 
House  instructing  the  Judiciary  Committee  to  report 
at  an  early  day  an  amendment  to  the  Constitution 
providing  for  the  "extension  of  the  right  of  suffrage 
to  aliens  residents  of  this  state  who  have  enlisted  or 
volunteered  or  may  enlist  or  volunteer  in  any  regi- 
ment in  this  state  and  have  been  honorably  dis- 
charged therefrom  and  who  may  now  or  hereafter 
become  naturalized  citizens  of  the  state." 

On  January  15,  a  resolution  was  adopted  that  the 
Committee  on  the  Judiciary  be  instructed  to  report  at 
an  early  day  an  amendment  to  the  Constitution 
providing  for  the  abolition  of  the  registry  tax,  and 
on  the  same  day  the  Judiciary  Committee  was  dis- 
charged and  both  resolutions  referred  to  a  joint 
special  committee  of  six,  three  from  the  House  and 
three  from  the  Senate. 

Neither  of  these  amendments  touched  directly 
the  matter  of  soldiers'  voting  in  the  field,  referred  to 
in  the  Governor's  message,  but  on  January  28,  1864, 
a  resolution  was  adopted  by  the  Senate  and  House 
referring  that  part  of  the  message  of  the  Governor 
to  the  Joint  Select  Committee  on  Amendments  to 
the  Constitution.2 

The  Select  Committee  reported  three  amendments 
which  were  taken  up  on  March  23  in  the  House,  and 
the  first,  providing  for  soldiers'  voting  in  the  field, 
was  adopted;  the  second,  providing  for  naturalized 
soldiers  who  had  been  discharged  being  voters,  was 

1  Public  Documents,   January  Session,  1864.     Governor's  Message,  p.  6. 
*  Mss.  House  Journal,  January  Session,  1864. 


RHODE   ISLAND  185 

amended  and  unanimously  passed;  and  the  third, 
changing  the  registration  tax,  was  amended  and 
passed  by  a  vote  of  41  yeas  against  4  nays.1  A 
resolution  providing  for  the  submission  of  the  amend- 
ments to  the  people  was  then  unanimously  passed.2 

The  amendments  were  presented  in  the  Senate 
on  February  24,  and  on  March  9  were  adopted.3 

On  March  10,  1864,  the  Senate  passed  in  con- 
currence a  resolution  submitting  the  amendments 
to  the  people.  They  were  read  to  the  electors  at 
their  annual  town  and  ward  meetings  in  April,  1864, 
as  provided  by  the  Constitution,  and  at  the  regular 
May  Session,  1864,  they  wTere  again  presented  to 
the  Legislature  for  its  action.  On  the  first  amend- 
ment, giving  soldiers  in  the  field  a  right  to  vote,  the 
vote  of  the  Senate  was  27  yeas  and  one  nay.  The 
second  was  unanimously  adopted,  and  the  third  was 
adopted  by  a  vote  of  26  yeas  to  2  nays.  In  the 
House  the  amendments  were  each  adopted  by  a 
unanimous  vote.4 

On  June  3,  1864,  an  act  was  passed  declaring 
that  the  amendments  had  been  proposed  at  the 
January  Session  by  a  majority  of  all  the  members 
elected  to  each  House;  that  they  had  been  published 
and  read  to  the  electors  at  their  annual  town  and 
ward  meetings,  and  were  then  presented  to  the 
Legislature  for  its  action;  and  that  they  were  ap- 
proved and  ordered  to  be  submitted  to  the  people 
for  their  final  vote  on  the  third  Monday  of  August, 
1864. 

This   act   also   provided   that   the   Governor   and 

1  Mss.  House  Journal,  January  Session,  1864,  pp.  347-351. 
1  Acts  and  Resolves,  January,  1864,  p.  235. 

3  Mss.  Senate  Journal,  1864. 

4  Mss.   Senate  Journal,   May  Session,    1864;    Mss.   House  Journal,   May 
Session,  1864,  p.  464. 


186  VOTING  IN  THE  FIELD 

Secretary  of  State  should  count  the  ballots  cast 
upon  the  acceptance  or  rejection  of  the  amendments 
by  the  people,  and  that  the  Governor  should  announce 
the  result  by  proclamation  on  or  before  the  first  day 
of  October,  1864.1 

On  September  10,  1864,  the  Governor  issued  his 
proclamation  declaring  that  "the  ballots  upon  the 
proposed  amendments  had  been  returned  to  the 
Secretary  of  State,  and  by  the  Governor  and  Secre- 
tary of  State  had  been  carefully  counted  with 
the  result  that  the  amendments  with  regard  to 
naturalized  voters  and  with  regard  to  the  registry 
tax  had  been  rejected  by  the  people,  but  that  the 
amendment  with  regard  to  soldiers  voting  in  the 
field  had  been  accepted."  But  there  nowhere  ap- 
pears in  the  proclamation  any  statement  of  the 
number  of  votes  cast  for  or  against  the  amendments, 
or  either  of  them,  and  I  am  advised  by  the  Secre- 
tary of  State  that  no  such  statement  of  the  votes  is 
to  be  found  in  the  records  of  his  office. 

The  amendment  which  was  adopted  permitting 
soldiers  to  vote  in  the  field  was  as  follows :  - 

"Electors  of  this  State,  who  in  time  of  war  are  absent 
from  the  State,  in  the  actual  military  service  of  the  United 
States,  being  otherwise  qualified,  shall  have  a  right  to  vote 
in  all  elections  in  the  State  forelectors  of  President  and  Vice- 
president  of  the  United  States,  Representatives  in  Congress, 
and  General  Officers  of  the  State.  The  General  Assembly 
shall  have  full  power  to  provide  by  law  for  carrying  this  ar- 
ticle into  effect:  and  until  such  provision  shall  be  made  by 
law,  every  such  absent  elector  on  the  day  of  such  elections, 
may  deliver  a  written  or  printed  ballot  with  the  names  of 
the  persons  voted  for  thereon,  and  his  Christian  and  sur- 
name, and  his  voting  residence  in  the  State,  written  at  length 

1  Acts  and  Resolves,  May  Session,  1864,  Chap.  529. 


RHODE  ISLAND  187 

on  the  back  thereof,  to  the  officer  commanding  the  regiment 
or  company  to  which  he  belongs;  and  all  such  ballots,  cer- 
tified by  such  commanding  officer  to  have  been  given  by  the 
elector  whose  name  is  written  thereon,  and  returned  by  such 
commanding  officer  to  the  Secretary  of  State  within  the  time 
prescribed  by  law  for  counting  votes  in  such  elections,  shall 
be  received  and  counted  with  the  same  effect  as  if  given  by 
such  elector  in  open  town,  ward  or  district  meeting;  and  the 
clerk  of  each  town  or  city,  until  otherwise  provided  by  law, 
shall  within  five  days  after  any  such  election,  transmit  to 
the  Secretary  of  State  a  certified  list  of  the  names  of  all  such 
electors  on  their  respective  voting  lists."  l 

This  amendment  required  no  legislation  to  en- 
able soldiers  to  vote  in  the  field  under  it,  and  the 
soldiers  from  Rhode  Island  voted  in  the  field  under  it 
at  the  November  election,  1864.  But  their  votes 
were  very  much  confused. 

A  large  number  of  the  soldiers  who  voted  were 
never  qualified  voters  in  the  State.  They  imagined 
that  the  Constitution  gave  them  a  vote  under  any 
circumstances.  A  good  many  others  had  been  voters 
previously  and  their  names  were  found  on  the  lists 
of  voters,  but  as  they  had  not  paid  their  registration 
tax,  they  were  not  qualified  voters  at  the  time  of 
the  election.  The  result  was  that  the  total  number 
of  votes  cast  was  885;  for  Lincoln  632;  for  McClel- 
lan  253.  Of  the  votes  cast  for  Lincoln  407  were  re- 
jected, leaving  only  225  that  were  counted,  and  of 
the  votes  cast  for  McClellan  213  were  rejected, 
leaving  only  40  which  were  counted,  making  a  total 
of  265  qualified  votes  which  were  accepted  out  of 
835  which  were  actually  cast.2 

The    General    Assembly    did    not    undertake    for 

1  Acts  and  Resolves,  May  Session,  1864,  p.  4. 

2  Return  in  Office  of  Secretary  of  State. 


188  VOTING  IN  THE  FIELD 

many  years  to  pass  any  act  under  this  amendment, 
but  in  June,  1898,  the  amendment  was  substantially 
incorporated  into  the  General  Law,  where  it  now 
appears  as  Section  58,  of  Chapter  II. 

This  legislation  appears  to  have  been  merely  to 
enable  the  Secretary  of  State  upon  the  receipt  of 
ballots  from  a  commanding  officer  to  deliver  them 
to  the  Returning  Board  which  had  then  been  estab- 
lished. 

April  21,  1914,  an  amendment  of  Section  58, 
Chapter  II,  was  made  to  adapt  the  statute  to  the 
election  of  Senators  by  the  people. 

At  the  time  of  the  Spanish  war,  1898,  soldiers 
from  Rhode  Island  voted  in  Virginia,  where  a  regi- 
ment was  encamped  for  training.  The  ballot  was 
prepared  by  the  Secretary  of  State  and  taken  to 
Virginia  by  an  officer  of  the  State  Militia,  who  su- 
perintended the  voting,  and  returned  the  ballots  to 
the  Secretary  of  State  to  be  canvassed. 


CHAPTER  XXI 

PENNSYLVANIA 

IN  Pennsylvania  the  provision  of  the  Constitution 
of  1838  giving  the  right  to  vote  which  was  in  force 
when  the  war  broke  out,  was: 

"In  the  election  by  citizens  every  white  freeman  of 
the  age  of  twenty-one  years  having  resided  in  this  State 
one  year  and  in  the  election  district  where  he  offers  to 
vote,  ten  days  immediately  preceding  such  election,  and 
within  two  years  paid  a  State  or  County  tax  which  shall 
have  been  assessed  at  least  ten  days  before  the  election, 
shall  enjoy  the  rights  of  an  elector." 

On  March  29,  1813,  the  State  had  passed  an  act, 
"To  enable  the  Militia  or  volunteers  of  this  State 
when  in  Military  Service  of  the  United  States  or  of 
this  State,  to  exercise  the  Rights  of  Election."1 

This  act  provided  that  any  person  having  the  right 
to  vote  at  a  general  election,  who  should  be  in  actual 
military  service  on  the  day  appointed  by  law  for 
holding  general  elections  within  the  Commonwealth, 
should  be  entitled  to  exercise  the  right  of  suffrage 
"at  such  place  as  may  be  prescribed  by  the  com- 
manding officer  of  the  company  or  troop"  to  which 
he  belongs,  provided  the  company  or  troop  was  more 
than  two  miles  from  "the  usual  place  of  holding 
elections."  The  captain  or  commanding  officer  of 
each  company  or  troop  was  to  act  as  judge,  and 
the  first  lieutenant  as  inspector  at  such  election,  and 

1  Acts  of  General  Assembly  of  Pennsylvania,  December  Session,  1812,  p.  213. 


190  VOTING  IN  THE  FIELD 

the  returns  were  to  be  certified  and  transmitted  to  the 
proper  election  authorities  in  the  State.  There  were 
sundry  other  provisions  for  the  proper  conduct  of  the 
election.  This  law  was  reenacted  in  the  General 
Election  Law  of  1839,  as  follows: 

"Whenever  any  of  the  citizens  of  this  Commonwealth, 
qualified  as  hereinbefore  provided,  shall  be  in  actual  mili- 
tary service,  in  any  detachment  of  the  militia  or  corps  of 
volunteers,  under  the  requisition  of  the  President  of  the 
United  States,  or  by  authority  of  this  Commonwealth, 
on  the  day  of  the  general  election,  such  citizens  may  exer- 
cise the  right  of  suffrage  at  such  place  as  may  be  appointed 
by  the  commanding  officer  of  the  troop  or  company  to 
which  they  shall  respectively  belong,  as  fully  as  if  they 
were  present  at  the  usual  place  of  election." 

Under  this  act  soldiers  voted,  and  their  votes 
were  counted,  up  to  1862,  when  the  act  was  held 
unconstitutional  by  the  Supreme  Court.  Indeed,  so 
well  settled  was  the  practice  of  soldiers'  voting  that 
in  a  case  which  arose  in  1861,  Chief  Justice  Lowrie 
of  the  Supreme  Court  declared  that  "the  law  provid- 
ing for  the  voting  of  soldiers  who  are  away  from  home 
in  actual  service  so  clearly  covers  by  its  terms  the 
case  of  municipal  elections  which  are  held  at  the  same 
time  as  the  general  election  that  we  must  declare  that 
the  soldiers  in  camp  had  a  right  to  vote  for  their 
proper  municipal  officers  at  home,  and  to  have  their 
votes  counted,"  etc.  This  decision  was  rendered  on 
the  twenty -fifth  of  November,  1861,  and  no  question 
was  made  as  to  the  constitutionality  of  the  law.1 
But  on  the  twenty -ninth  of  November,  1861,  the 
suit  of  Chase  vs.  Miller  was  brought  in  the  Court  of 
Quarter  Sessions  in  which  the  question  of  the  consti- 


1  Halseman  el  al.  vs.  Rems,  et  al.,  41  Penn.  State,  396. 


X 


PENNSYLVANIA  191 

tutionality  of  the  act  was  raised.  On  the  sixth  of 
January,  1862,  the  Court  of  Quarter  Sessions  filed  an 
elaborate  opinion  sustaining  the  constitutionality  of 
the  act. 

This  opinion  is  reported  in  the  "Legal  Intelligencer" 
of  February  7,  1862.  It  is  preceded  by  a  very  learned 
argument  by  Lyman  Hakes  against  the  constitutional- 
ity of  the  State  Law.  He  said  that  the  language  of  the 
Constitution  was  explicit  that  a  man  could  vote  in 
his  election  district,  which  meant  that  he  could  vote 
nowhere  else.  The  language  of  the  Constitution  was 
the  language  of  the  ablest  men  of  the  time,  and  it 
was  assumed  that  they  knew  what  they  meant. 
He  said  that  the  reasons  for  such  construction  were 
controlling. 

"What  has  ever  been  the  effect  of  an  army  vote,  but 
in  the  end  to  subvert  republican  government  and  the 
election  of  military  rulers?  It  was  so  with  Rome,  and  in 
later  days  both  Napoleons  have  mounted  to  despotic 
power  over  constitutions  of  the  people  by  arming  the 
army  with  both  bayonets  and  ballots.  I  believe  it  con- 
trary to  the  policy  of  our  fathers  and  to  the  genius  of  our 
institutions.  Look,  for  illustration,  to  our  sister  State, 
Maryland.  Do  we  not  all  know,  —  though  we  accepted 
it  as  a  necessity  for  the  good  of  the  country,  —  do  we  not 
all  know  that  nothing  but  the  presence  of  the  Federal 
Army  on  her  soil  carried  that  State  for  the  Union?  We 
all  know  it.  And  would  we  arm  that  tremendous  power 
with  the  ballot  also?  Shall  we  bind  ourselves  hand  and 
foot,  and  lay  down  the  government  at  the  mercy  of  mili- 
tary ambition?" 

The  opinion  by  Judge  Conyngham  stated  the  im- 
portance of  the  question: 

"The  Commonwealth  now  has  in  the  field  a  gath- 
ered army  of  about  100,000  men,  of  whom  [a  Jlarge 


192  VOTING  IN  THE  FIELD 

number  are  in  other  respects  qualified  voters.  To  dis- 
franchise by  the  stroke  of  a  pen,  or  by  judicial  decision, 
so  large  a  body  of  freemen  and  citizens  is  of  such  mo- 
mentous consequence  as  to  require  full,  careful  and 
calm  consideration.  These  men,  it  must  be  remembered, 
if  they  had  remained  at  home,  would  have  been  as  truly 
entitled  to  their  votes  in  the  selection  of  officers  to  exer- 
cise control  over  their  civil  rights,  as  the  persons  who 
are  personally  interested  in  this  case.  If  it  is  to  be  held 
that  because,  in  this  life  struggle  for  a  country's  exist- 
ence, they  have  cast  aside  the  duties  of  business  and  the 
comforts  of  home  life  to  answer  the  call  made  upon  them 
by  the  constituted  authorities  of  the  land,  even  to  the 
hazard  of  their  own  lives,  they  have  thereby  sacrificed  one 
of  the  dearest  rights  of  a  freeman,  —  to  give  his  vote  at 
the  public  polls,  —  it  is  time  that  it  should  be  known. 
Especially  would  this  be  the  case,  when  by  our  published 
statutes  at  the  time  they  tendered  their  service  they  were 
apparently  instructed  that  they  should  have  a  voice  in 
the  selection  of  civil  officers.  To  deny  it  now  would  be 
to  'keep  the  word  of  promise  to  the  ear,  but  break  it  to 
the  hope.'  The  act  authorizing  their  vote  is  upon  the 
statute  book.  The  inference  from  the  agreement  of  the 
parties  is,  that  according  to  its  requirements  all  has  been 
properly  done;  the  only  question  being,  Can  this  act  be  con- 
sidered the  law  of  the  land  under  the  Constitution,  or  did 
the  Constitution  in  effect  sweep  it  from  the  statute  book?" 

Then  followed  an  elaborate  discussion  of  the  Con- 
stitution and  of  the  manner  of  its  adoption,  and  of 
its  object  and  intent.  The  Judge  said  the  matter  of 
election  districts  was  "wholly  in  the  control  of  the 
Legislature.  An  election  district  is  not  the  creature 
of  the  Constitution,  but  of  the  statutes,  and  the 
Legislature  may  lay  out  election  districts,  or  provide 
for  their  existence,  as  it  pleases."  No  man  was  to 
be  deprived  of  his  right  of  voting  unless  he  intention- 


PENNSYLVANIA  193 

ally  and  voluntarily  changed  his  residence.  Such 
was  not  the  case  with  the  soldier,  whom  they  called 
a  volunteer,  to  distinguish  him  from  the  ordinary 
militia-man,  who  was  still  liable  to  compulsory  duty 
of  service,  and  might  be  drafted  and  called  into  the 
field,  and  thus  taken  away  from  his  place  of  residence 
by  the  order  of  the  Commander-in-chief. 

"It  is  to  guard  against  fraud  at  the  home  election 
districts  that  this  clause  was  adopted,  and  no  further.  We 
find  nothing  in  the  Constitution,  as  we  regard  it,  which 
prohibits  the  Legislature  from  making  provision  for  the 
votes  of  such  compulsory  absentees. 

"It  is  conceded  that  the  right  to  vote  has  not  been 
take  away,  but  that  merely  the  opportunity  to  exercise 
it  is  gone  by  absence  from  the  district.  Why  should  not 
the  Legislature  protect  against  the  loss  of  such  a  privilege? 
The  Courts  appoint  commissioners  to  take  testimony 
in  suits;  the  Governor  appoints  commissioners  resident 
in  other  states  to  take  acknowledgments  of  deeds  and 
other  papers  to  be  used  in  evidence  of  facts  at  home. 
Why  should  not  the  Legislature  establish  a  mode  to  take 
the  evidence  of  the  soldiers'  choice  under  circumstances 
like  the  present  as  given  or  proved  by  the  ballot  box? 
It  would  be  a  denial  of  sovereignty  to  refuse  to  permit 
the  State  to  protect  that  which  is  not  only  their  own  right, 
but  the  right  of  the  people  also." 

The  Court  therefore  held  that  Miller  was  elected. 
The  case  was  thereupon  removed  into  the  Supreme 
Court,  where  it  was  argued  at  length,  and  in  an  opin- 
ion delivered  May  22,  1862,  written  by  Woodward,  J., 
concurred  in  by  Lowrie,  C.  J.,  it  was  held  that  although 
the  act  of  1813  might  have  been  valid  under  the  Con- 
stitution which  was  in  force  when  it  was  passed,  it 
was  made  invalid  by  the  adoption  of  the  amended 
Constitution  of  1838.  The  opinion  held  that  "election 


194  VOTING  IN  THE  FIELD 

districts"  are  subdivisions  of  state  territory  declared 
by  public  authority,  which  "can  neither  be  created  nor 
controlled  by  the  military  power,"  and  that  the  right  of 
a  soldier  to  vote  under  the  Constitution  is  confined  to 
the  election  district  where  he  resided  at  the  time  of  his 
entering  the  military  service,  and  therefore  that  the 
election  law  of  1839,  allowing  soldiers  to  vote  outside 
of  the  boundaries  of  the  State,  was  unconstitutional 
and  void.1  The  opinion  is  very  elaborate  and  quite 
subtle  in  some  of  its  reasoning.  The  Court  said  in 
part: 

"To  offer  to  vote  by  ballot  is  to  present  himself  with 
the  proper  qualification  at  the  time  and  place  appointed, 
and  make  manual  delivery  of  the  ballot  to  the  officers 
appointed  by  law  to  receive  it.  The  ballot  cannot  be 
sent  by  mail  or  express,  nor  can  it  be  cast  outside  of  all 
Pennsylvania  election  districts  and  certified  into  the 
county  where  the  voter  has  his  domicile.  We  cannot  be 
persuaded  that  the  Constitution  ever  contemplated  any 
such  mode  of  voting,  and  we  have  abundant  reason  for 
thinking  that  to  permit  it  would  break  down  all  the  safe- 
guards of  honest  suffrage.  The  Constitution  meant  rather 
that  the  voter  in  propria  persona  should  offer  his  vote  in 
an  appropriate  election  district,  in  order  that  his  neigh- 
bors might  be  at  hand  to  establish  his  right  to  vote  if 
it  were  challenged,  or  to  challenge  if  it  were  doubtful. 

"It  is  scarcely  possible  to  conceive  of  any  provision 
and  practice  that  could  at  so  many  points  offend  the 
cherished  policy  of  Pennsylvania  in  respect  to  suffrage. 
Our  constitution  and  laws  treat  the  elective  franchise  as 
a  sacred  trust  committed  only  to  that  portion  of  the  citi- 
zens who  come  to  the  prescribed  standards  of  qualification, 
and  to  be  exercised  by  them  at  the  time  and  place  and  in 
the  manner  prearranged  by  public  law  and  proclamations, 


1  Chase  vs.  Miller,  41  Pennsylvania  State  Reports,  1401. 


PENNSYLVANIA  195 

and  whilst  being  exercised  to  be  guarded  down  to  the 
instant  of  its  final  consummation  by  magistrates  and  con- 
stables, and  by  oaths  and  penalties;  all  of  which  the 
soldiers'  voting  law  reverses  and  disregards,  and  opens  a 
wide  door  for  most  odious  frauds,  some  of  which  have 
come  under  our  judicial  cognizance." 

Again, 

"The  Constitution  prescribes  the  place  for  the  exercise 
of  the  rights  of  suffrage,  to  wit,  an  election  district.  The 
soldiers'  voting  law  does  not  assume  to  create  an  election 
district.  The  place  which  the  commanding  officer  is 
authorized  to  appoint  for  voting  is  not  the  equivalent 
of  an  election  district.  First,  because  there  is  no  prior 
public  designation  of  it  as  an  election  district  where  a 
ballot  box  can  be  found.  Second,  because  the  Legislature 
have  no  power  to  authorize  a  military  commander  to 
make  an  election  district.  It  is  a  part  of  the  civil  ad- 
ministration, and  no  civil  functions  can  be  delegated  to  a 
military  commander.  If  the  Legislature  had  said  in  the 
most  express  terms  that  the  commander  might  declare  his 
camp,  wherever  it  might  happen  to  be,  an  election  dis- 
trict, it  could  have  availed  nothing,  for  the  Constitution 
in  referring  to  the  Legislature  for  election  districts  recog- 
nized them  as  among  the  civil  institutions  of  the  State  to 
be  created  and  controlled  exclusively  by  the  civil  as 
contradistinguished  from  the  military  power  of  the  State." 

One  of  the  Judges  dissented  from  this  conclusion. 

It  would  have  been  quite  possible  for  the  Supreme 
Court  to  have  followed  the  decision  of  the  Court 
of  Quarter  Sessions,  and  held  the  law  constitutional. 
Indeed,  the  uniform  acquiescence  of  all  branches  of 
the  State  government  in  the  validity  of  the  law  for 
half  a  century,  was  a  practical  construction  of  the 
Constitution  and  of  the  statute,  which  should  not 
have  been  lightly  set  aside.  But  Woodward,  and  the 


196  VOTING  IN  THE  FIELD 

majority  of  the  Judges  of  the  Supreme  Court,  were 
violent  anti-war  Democrats.  They  held  in  1862  that 
the  United  States  conscription  act  was  unconstitu- 
tional, that  the  federal  government  had  no  power 
to  raise  troops  except  by  voluntary  enlistment,  and 
that  the  militia  could  be  called  out  only  by  State 
authority  and  under  State  officers. 

Chase  vs.  Miller  arose  upon  the  election  of  a  dis- 
trict attorney,  a  State  officer,  and  the  question 
whether  the  State  could  authorize  voting  outside 
of  its  limits  for  presidential  electors  and  members  of 
Congress  was  not  raised,  obviously  not  thought  of. 
It  seems  quite  probable,  however,  from  the  language 
of  the  opinion  of  Judge  Woodward,  that  he  might 
have  gone  so  far  as  to  hold  that  the  State  could  not 
authorize  voting  outside  of  its  limits  for  electors  and 
Congressmen. 

Woodward  was  the  Democratic  candidate  for 
governor  against  Curtin  in  1863,  and  General  McClel- 
lan  wrote  a  letter  to  aid  him  in  his  campaign,  in  which 
he  said  that  he  thought  his  election  was  "called  for 
by  the  interests  of  the  Nation."  Woodward  was 
beaten  by  a  majority  of  over  15,000.  Lowrie,  Chief 
Justice,  was  beaten  by  the  Union  candidate  by  a 
majority  of  over  12,000.  The  Court  being  thus 
reconstituted,  the  decision  that  the  conscription  act 
was  unconstitutional  was  reversed,  and  it  is  quite 
probable  that  the  decision  as  to  the  soldiers'  voting 
in  the  field  might  also  have  been  overturned  if  it 
could  have  been  brought  before  the  Court. 

To  amend  the  Constitution  required  an  amend- 
ment to  be  agreed  to  by  a  majority  of  the  members 
of  each  House,  and  the  amendment  entered  on  their 
journals  with  the  yeas  and  nays  taken  thereon.  The 
amendment  was  then  to  be  published  three  months 


PENNSYLVANIA  197 

before  the  next  election  in  one  newspaper  in  every 
county;  and  if  in  the  Legislature  next  afterward 
chosen,  such  amendment  was  agreed  to  by  a  majority 
of  the  members  elected  to  each  House,  the  same  was 
to  be  again  published,  and  submitted  to  the  people 
in  such  manner  as  the  Legislature  should  prescribe, 
at  least  three  months  after  it  was  agreed  to  by  the 
two  Houses.  If  a  majority  of  the  qualified  voters 
voting  thereon  approved  of  such  amendment,  it 
became  a  part  of  the  Constitution. 

At  the  January  Session  of  the  Legislature  in  1863, 
on  February  5,  an  amendment  to  the  Constitution  to 
enable  the  Legislature  to  permit  soldiers  to  vote  in  the 
field  was  presented  to  the  House.  February  12,  a  joint 
resolution  proposing  such  an  amendment  was  referred 
to  the  Judiciary  Committee,  and  on  April  13,  was 
passed  by  a  unanimous  vote.1  February  11,  the  reso- 
lution was  considered  in  the  Senate  and  passed, 
motions  to  amend  it  being  voted  down.2 

At  the  next  Legislature,  on  January  27,  1864,  a 
resolution  was  introduced  in  the  Senate  "that  before 
the  Legislature  adjourns  we  will  give  such  legisla- 
tion as  will  enable  the  soldiers  to  vote,"  which  was 
defeated  by  a  vote  of  12  to  12,  and  the  Senate 
proceeded  to  a  thirteenth  ballot  for  Speaker.  On 
January  29  a  resolution  was  proposed  that  "The 
Senate  pledges  itself  that  at  some  future  time  during 
the  present  session  it  will  enact  such  laws  as  will 
enable  the  soldiers  to  vote."  There  were  nine  votes 
for  this  resolution  and  nine  against  it,  so  the  reso- 
lution was  defeated.  On  February  4,  1864,  another 
resolution  was  introduced  that  "  This  Senate  will 
not  adjourn  until  such  legislation  has  passed  this 

1  House  Journal,  1863,  pp.  171,  908. 

2  Senate  Journal,  1863,  pp.  164-6. 


198  VOTING  IN  THE  FIELD 

body  as  will  enable  soldiers  to  vote,"  which  was 
defeated  by  a  vote  of  ten  to  eleven.  On  February 
29,  a  bill  \vas  introduced  entitled  "An  Act  to  regu- 
late election  by  soldiers  in  actual  military  service," 
which  was  referred  to  the  Judiciary  Committee. 
This  Committee  reported  it  on  March  29,  in  a 
new  draft,  and  it  was  then  considered  in  the  Com- 
mittee of  the  Whole,  and  was  finally  made  a  special 
order  for  March  31,  when  it  was  debated  at  length. 
Numerous  amendments  were  proposed  and  voted 
down,  in  some  cases  by  a  narrow  majority,  and  in 
others  by  an  even  vote  of  16  to  16,  the  votes  usually 
being  16  to  17,  15  to  16,  etc.  The  bill  was  finally 
passed  by  a  vote  of  18  Republicans  to  13  Democrats.1 
In  the  House  on  January  26,  1864,  a  resolution 
was  adopted  by  a  vote  of  84  to  3,  as  follows: 

"WHEREAS,  The  gallant  sons  of  Pennsylvania  who 
have  voluntarily  sacrificed  the  pleasures  and  endearments 
of  home,  endured  the  hardships  and  braved  the  diseases 
incident  to  camp  life,  and  have  bodily  faced  death  itself 
on  the  stormy  battlefield,  in  defence  of  our  imperiled 
Government;  and  who  by  their  unsurpassed  valor  have 
wreathed  Pennsylvania's  brow  with  fadeless  laurels,  and 
added  imperishable  lustre  to  her  former  renown,  where- 
ever  and  whenever  a  traitor  foe  was  found,  have  hitherto 
been  deprived  of  a  citizen's  highest  privilege: 

"AND  WHEREAS,  The  patriot  soldier,  who  heroically 
risks  life  itself  to  perpetuate  free  Government,  should 
not  be  robbed  of  his  right  to  have  his  voice  heard  in  the 
selection  of  those  who  shall  administer  it;  therefore, 
RESOLVED,  That  the  Judiciary  Committee  (General)  be 
requested  to  report  to  this  House,  at  its  earliest  possible 
convenience,  the  proposed  amendments  to  the  Constitu- 
tion, as  passed  at  the  session  of  1863,  extending  the  right 


Senate  Journal,  1864,  pp.  88,  94,  109,  125,  448,  492-500. 


PENNSYLVANIA  199 

of  suffrage  to  our  soldiers  in  the  field,  etc.,  and  to  report 
at  the  same  time  an  act  authorizing  and  directing  an  elec- 
tion, to  be  held  by  the  people,  to  adopt  or  reject  said 
amendments,  as  early  as  the  1st  of  August,  1864,  and  pro- 
viding for  the  return  and  counting  of  said  votes,  in  time, 
if  the  same  should  be  adopted,  to  enable  the  soldiers  of 
Pennsylvania,  in  the  service  of  the  State  or  General  Gov- 
ernment, to  vote  at  the  next  general  and  Presidential 
elections,  and  at  all  elections  thereafter." 

The  amendment  to  the  Constitution  provided 
that  any  qualified  electors  in  actual  military  service 
might  "exercise  the  right  of  suffrage  in  all  elections 
by  the  citizens  under  such  regulations  as  are  or  shall 
be  prescribed  by  law  as  fully  as  if  they  were  present 
at  their  usual  place  of  election."1 

The  act  for  submitting  the  amendment  to  the 
people  was  passed  on  the  twenty-third  of  April, 
1864,  and  recited  that  the  joint  resolution  proposing 
the  amendment  had  been  agreed  to  by  a  majority 
of  the  members  elected  to  each  House  of  the  Legis- 
lature at  two  successive  sessions  of  the  same,  the 
first  commencing  on  the  first  Tuesday  of  January, 

1863,  and  the  second  on  the  first  Tuesday  of  January, 

1864,  and  provided  for  a  vote  by  the  people  on  the 
first  Tuesday  of  August,  1864.2 

On  April  1,  the  soldiers'  voting  bill,  which  had 
passed  the  Senate,  was  received  by  the  House  and 
referred  to  the  Judiciary  Committee,  and  on  April 
4,  the  House  resolved  to  ask  the  Attorney  General's 
opinion  as  to  the  constitutional  right  of  the  Legisla- 
ture to  pass  such  a  law  prior  to  the  proposed  adoption 
of  an  amendment  to  the  Constitution  under  which  it 
could  be  passed.  The  opinion  of  the  Attorney 


1  Laws  of  Pennsylvania,  1864,  p.  1054.  2  Ibid.,  p.  545. 


200 

General  was  that  it  would  not  be  constitutional  to 
pass  a  law  before  the  Constitution  was  amended 
so  as  to  allow  it.  Both  Houses  then  passed  a  reso- 
lution to  adjourn  on  May  5  until  August  23  "for  the 
purpose  of  receiving  and  counting  the  votes  on  the 
proposed  amendments  to  the  Constitution,  and  of 
passing  such  laws  only  as  may  be  necessary  to  carry 
the  same  into  effect."  l 

On  April  30,  the  bill  was  reported  from  the 
Judiciary  Committee  in  a  new  draft,  and  on  May  3 
it  was  moved  to  suspend  the  rules  and  consider  the 
bill.  Whereupon  it  was  moved  to  adjourn,  which 
was  negatived,  and  the  House  then  refused  to  suspend 
the  rules  by  a  vote  of  46  to  36,  two-thirds  not  voting 
in  the  affirmative.  On  May  5,  the  Legislature  ad- 
journed until  August  23,  but  the  Confederate  raid 
into  the  State,  and  the  pillage  of  Chambersburg  by 
the  Confederates  on  July  30,  caused  the  Governor  to 
call  a  special  session  of  the  Legislature  on  August  9, 
1864.  At  this  session,  on  August  23,  1864,  the  votes 
of  the  people  on  the  amendment  were  canvassed  by 
the  Speaker  of  the  House  and  President  of  the  Senate. 
There  were,  for  the  amendment,  199,855,  against  it> 
105,352.  In  the  Democratic  counties  of  the  State 
the  majorities  against  the  amendment  were  8,611; 
in  the  Republican  counties  the  majorities  for  the 
amendment  were  42,487.  In  short,  the  people  divided 
upon  the  amendment  substantially  upon  party  lines, 
the  Democrats  being  opposed  to  it,  and  the  Repub- 
licans being  for  it.2 

On  August  23,  1864,  the  soldiers'  voting  bill  was 
considered  by  the  House.  An  amendment  was  offered 
and  voted  down,  40  to  42.  A  motion  to  adjourn  was 


1  House  Journal,  1864,  p.  627.  *  Ibid.,  pp.  1088,  1098. 


PENNSYLVANIA  201 

then  made  and  voted  down,  30  to  53.  Another 
amendment  was  then  offered  and  voted  down,  41  to 
43.  Numerous  other  amendments  were  proposed  and 
voted  down  by  about  the  same  majority.  On  August 
24,  the  bill  was  again  considered,  and  numerous 
amendments  were  offered,  most  of  which  were  voted 
down  by  the  same  majorities  as  before.  Finally  the 
bill  was  passed  by  a  vote  of  49  Republican  yeas,  to 
41  Democratic  nays,  and  the  bill  was  returned  to  the 
Senate. 

The  Senate  non-concurred  in  the  House  amendments 
to  the  bill,  and  asked  for  a  committee  of  conference, 
which  was  appointed  and  on  August  24th  the  com- 
mittee of  conference  reported  that  the  House  should 
recede  from  certain  amendments  to  the  bill,  and  that 
the  Senate  should  concur  in  the  other  amendments, 
and  the  report  was  adopted  and  the  bill  passed. 

August  25,  Governor  Curtin  signed  the  bill,  say- 
ing in  a  message  sent  to  the  House  that  he  had  no 
time  to  examine  it,  but  presumed  that  the  conditions 
of  the  bill  had  been  wisely  and  carefully  framed  and 
considered  by  the  Legislature.1 

The  Act  was  entitled  "An  Act  to  regulate  elections 
by  soldiers  in  actual  military  service,"  and  provided 
that  any  qualified  electors  absent  in  actual  military 
service  on  the  days  appointed  for  "holding  the 
general  or  presidential  elections  within  the  State," 
should  be  entitled  at  such  times  to  exercise  the  right 
of  suffrage  as  fully  as  if  they  were  present  at  their 
usual  places  of  election,  whether  they  should  be 
within  the  limits  of  the  State  or  not.  It  provided 
that  a  poll  should  be  opened  in  each  company 
composed  in  whole  or  in  part  of  Pennsylvania 

1  House  Journal,  1864,  pp.  510,  519,  769,  1018,  1196,  1205,  1207,  1213,  1214, 
1215,  1218,  1225,  1233,  1235,  1240,  1249. 


202  VOTING  IN  THE  FIELD 

soldiers,  at  the  quarters  of  the  captain  or  other 
officer  thereof;  and  all  soldiers  belonging  to  such 
company  who  should  be  within  one  mile  of  such 
quarters  on  the  day  of  election,  and  not  prevented 
by  orders  of  their  commander,  or  proximity  of  the 
enemy,  from  returning  to  their  company  quarters, 
should  vote  at  such  poll,  and  at  no  other  place.  It 
also  provided  that  ten  or  more  soldiers  unable  to  attend 
a  company  might  vote  at  such  place  as  they  might 
select,  and  provided  that  where  there  were  soldiers 
less  than  ten  in  number  separated  from  their  proper 
company,  or  in  any  hospitals,  navy-yards,  vessels, 
or  on  provost  or  other  duty,  whether  within  or 
without  the  State  of  Pennsylvania,  they  should  have 
a  right  to  vote  by  proxy,  that  is,  practically  by  put- 
ting their  votes  in  an  envelope,  sealing  them  up  and 
directing  them  to  some  person  at  home  to  cast  them 
for  them,  substantially  in  the  same  way  in  which 
all  soldiers  of  New  York  were  required  to  vote. 

This  act  occupies  ten  pages  in  the  Statutes,  and  is 
very  elaborate.  It  provided  that  the  Judges  to  whom 
tickets  are  delivered  at  a  poll  of  the  company  should 
call  the  name  of  the  soldier  "with  an  audible  voice." 
It  also  provided  for  the  appointment  of  commis- 
sioners by  the  Governor  to  deliver  the  act,  and  poll 
box,  lists,  and  blank  returns  to  the  commanding 
officers,  etc. 

The  act  also  contained  a  provision  that  the  as- 
sessors should  assess  a  county  tax  of  ten  cents  upon 
each  non-commissioned  officer  and  private  and  the 
usual  tax  upon  every  commissioned  officer  known 
by  them  to  be  in  the  military  service  of  the  United 
States,  and  when  any  omission  occurred  the  omitted 
names  should  be  added  by  the  assessors  to  the  assess- 
ments and  list  of  voters,  upon  the  application  of  any 


PENNSYLVANIA  203 

citizen  of  the  election  district  or  precinct  wherein  the 
soldier  had  a  right  to  vote,  and  such  non-commissioned 
officers  and  privates  should  be  exempt  from  all  other 
personal  taxes  during  their  continuance  in  such  service. 
This  was  to  cover  the  requirement  of  the  third 
Article  of  the  Constitution  which  made  the  payment 
of  a  tax  a  prerequisite  to  the  right  to  vote.1 

The  voting  act  of  1864,. authorized  voting  in  the 
field  only  at  general  elections,  that  is,  for  State 
officers,  and  on  January  22,  1865,  an  act  was  passed 
providing  for  "proxy  voting  by  soldiers  in  the  field 
during  the  continuance  of  the  present  rebellion" 
in  the  City  elections  of  Lancaster  and  Harrisburg.2 
None  of  these  soldiers'  voting  acts  are  in  the  Digest 
of  1872. 

The  votes  of  the  soldiers  in  Pennsylvania  in  1861, 
who  were  in  Pennsylvania  to  vote  and  did  vote, 
were  11,351  Republican,  and  3,173  Democratic,  mak- 
ing a  Union  majority  of  8,178.  In  1862  only  a  few 
regiments  and  companies  remained  in  the  State  and 
voted.  At  the  October  election  they  cast  1,867  Repub- 
lican votes,  and  251  Democratic,  making  a  Union 
majority  of  1616. 

After  the  Soldiers'  Voting  Act  was  passed  there 
were  two  elections  in  1864.  At  the  October  election, 
the  soldiers'  vote  was  17,888  for  the  Republican 
candidates,  and  5,232  for  the  Democratic  candidates, 
being  a  Republican  majority  of  12,656. 3  At  the  No- 
vember election  the  soldiers'  vote  was  26,712  for 
Lincoln  electors,  and  12,349  for  McClellan  electors,  a 
total  of  39,061,  or  about  seven  per  cent,  of  the  total 
vote  of  the  State,  which  was  572,  697. 


1  Laws  of  Pennsylvania,  1864,  p.  990. 

2  Laws  of  Pennsylvania,  1865,  p.  74. 

8  New  York  Tribune,  November  1,  1864. 


CHAPTER  XXII 

NEW  HAMPSHIRE 

IN  1863  New  Hampshire  was  a  very  close  state. 
A  majority  of  9,115  for  Lincoln  in  1860  had  shrunk 
to  3,584  in  1862,  and  to  a  plurality  of  only  574  in 
1863.  As  the  constitution  required  a  majority  there 
was  no  election  of  Governor  by  the  people  that  year, 
and  a  Republican  Governor  was  elected  by  the  Legis- 
lature, which  was  safely  Republican,  by  a  majority 
of  49  in  its  House,  and  two  thirds  in  its  Senate  of  12 
members. 

It  seemed  quite  likely  that  the  soldiers'  vote, 
if  it  could  be  cast,  might  control  the  next  election. 
Indeed,  the  majority  of  that  vote  cast  in  the  field 
and  reported  and  counted  at  the  presidential  election 
of  1864,  was  1,376,  which,  it  will  be  seen,  was  quite 
sufficient  to  control  the  state,  upon  the  vote  of  1863. 
The  matter  of  a  soldiers'  voting  bill  had  been  dis- 
cussed before  the  people  in  1863,  and  in  his  message 
to  the  June  session  of  the  Legislature  of  that  year, 
Governor  Gilmore  recommended  a  soldiers'  voting 
bill,  and  said: 

"I  am  informed  that  during  the  present  session  a  bill 
will  be  introduced  to  your  notice  that  shall  confer  upon 
the  soldiers  of  New  Hampshire  in  the  field  the  privilege 
of  voting  while  absent  from  their  place  of  residence.  This 
measure  has  seemed  to  commend  itself  to  the  people  of  this 
State  on  all  sides  of  political  opinion.  Several  of  the 
states  have  already  adopted  similar  provisions  and  I  have 
no  doubt  that  the  consideration  of  our  state  will  sanction 


NEW  HAMPSHIRE  205 

an   enactment   of   this   kind.     I    would   earnestly   recom- 
mend  this   subject   to   your   favorable   consideration." 

The  Democratic  vote  for  speaker  in  the  House 
was  109,  and  there  was  a  Republican  majority  of 
about  67.  The  Senate  of  12  members  had  a  two- 
thirds  Republican  majority. 

On  the  first  day  of  the  session,  notice  was  given 
in  the  House  of  a  soldiers'  voting  bill,  and  on  the 
eighth  of  June,  "An  Act  to  secure  the  right  of  suffrage 
to  the  qualified  voters  of  this  state  engaged  in  the 
military  or  naval  service  of  the  country,"  was  intro- 
duced. The  question  of  whether  such  a  bill  would 
be  constitutional  had  been  raised,  and  when  the  bill 
was  introduced  it  was  laid  on  the  table,  ordered  to 
be  printed,  and  a  copy  furnished  each  of  the  Justices 
of  the  Supreme  Court,  with  the  request  that  they 
would  give  their  opinion  as  to  its  constitutionality. 
Owing  to  the  illness  of  some  of  the  Judges,  and  the 
absence  of  some  of  the  others,  they  do  not  appear  to 
have  acted  upon  the  matter  immediately,  and  upon 
June  llth,  the  bill  was  taken  from  the  table,  read  a 
second  time,  and  referred  to  the  Committee  on  the 
Judiciary.  On  June  24th,  the  House  adopted  a 
preamble  and  resolution  which  recited  that  the  bill 
"involved  important  questions  of  constitutional  law, 
and  was  laid  on  the  table  in  order  to  obtain  the 
opinion  of  the  Justices  of  the  Supreme  Court  upon 
it,  which  had  not  been  received."  Therefore  the 
Committee  on  the  Judiciary  was  instructed  respect- 
fully to  inquire  whether  the  Court  had  been  notified, 
and  whether  the  bill  had  been  considered  by  the 
Justices,  and  the  questions  submitted  to  them  de- 
termined, and  if  not,  "to  ascertain  and  report  the 
reason  why,"  and  also  whether  the  decision  might 


206  VOTING  IN  THE  FIELD 

be  had  during  the  then  session  of  the  Legislature. 
The  Committee  reported  the  next  day  that  the  Court 
had  been  notified,  the  question  had  been  considered, 
but  it  had  not  been  determined,  and  that  the  decision 
of  the  Court  would  probably  be  had  on  the  next  day. 
On  June  29,  the  opinion  of  the  Supreme  Court  was 
furnished  as  requested  by  the  House.  It  was  signed 
by  Samuel  D.  Bell,  Chief  Justice,  and  Henry  A. 
Bellows,  George  W.  Nesmith,  and  William  H.  Bart- 
lett,  Associates. 

The  Justices  said  that  the  Constitution  of  New 
Hampshire  required  a  voter  to  vote  at  the  places 
pointed  out  in  the  Constitution,  and  that  therefore 
the  bill  "in  its  most  prominent  feature  is  in  conflict 
with  the  provision  and  spirit  of  our  Constitution." 

The  bill  was  general.  It  applied  to  the  election 
of  State  officers  as  well  as  to  the  election  of  repre- 
sentatives in  Congress  and  presidential  electors,  but 
the  attention  of  the  Court  does  not  seem  to  have 
been  directed  to  a  distinction  between  the  constitu- 
tionality of  an  act  authorizing  votes  for  electors  and 
representatives  in  Court,  and  the  constitutionality  of  an 
act  authorizing  votes  for  State  officers.  So  far  as  I  can 
ascertain,  this  distinction  was  not  taken  by  anybody 
at  that  time.  This  opinion  of  the  Court  was  received 
and  read  on  June  29,  and  on  July  3,  the  bill  and 
the  majority  and  minority  reports  of  the  Judiciary 
Committee  upon  it,  were  referred  to  the  next  session 
of  the  Legislature,  and  the  opinion  of  the  Supreme 
Court  was  placed  on  file  in  the  office  of  the  Secretary 
of  State.  Thus  ended  the  attempt  to  authorize 
soldiers'  voting  in  1863. 

At  the  regular  session  of  the  Legislature  in  June, 
1864,  the  Governor  again  recommended  a  soldiers* 
voting  bill,  saying: 


NEW  HAMPSHIRE  207 

"I  regret  exceedingly  that  at  the  last  session  of  the 
Legislature  measures  were  not  taken  to  so  amend  the 
Constitution  of  the  State  as  to  secure  this  right  to  all 
soldiers  without  withdrawing  them  from  the  field  of  active 
operations.  Such  an  amendment  has  lately  been  adopted 
by  the  State  of  New  York,  and  I  would  urge  a  similar 
amendment  to  our  Constitution  as  an  act  of  mere  jus- 
tice to  our  noble  soldiers.  I  cannot  understand  why  a 
man's  loyalty  should  disfranchise  him,  nor  do  I  believe  the 
liberties  of  the  nation  are  safer  in  other  hands,  than  in 
those  of  men  who  have  taken  up  arms  to  defend  them." 

Nothing  was  done  about  the  matter,  however,  at 
the  regular  session,  except  to  postpone  indefinitely 
the  bill  which  had  been  held  unconstitutional  by  the 
Court  in  1863,  and  referred  to  the  next  session.  But 
at  the  extra  session  in  August,  1864,  a  bill  was  pre- 
sented in  the  House  to  enable  soldiers  to  vote  in  the 
field  for  electors  of  President  and  Vice-president, 
and  for  representatives  in  Congress,  and  was  referred 
to  the  Committee  on  the  Judiciary.  This  bill,  it  will 
be  seen,  was  put  upon  the  same  ground  upon  which 
the  Supreme  Court  of  Vermont  had  based  the  con- 
stitutionality of  the  soldiers'  voting  bill  in  that  State, 
that  is,  that  as  the  Federal  Constitution  was  silent  as 
to  the  place  of  voting  for  electors  and  representatives 
in  Congress,  the  Legislature  was  free  to  provide  that 
they  should  be  voted  for  outside  of  the  State.  On 
August  11,  a  majority  of  the  Committee  reported 
recommending  the  passage  of  the  bill,  but  a  minority 
report,  signed  by  Harry  Bingham  and  John  G.  Sin- 
clair, the  two  leading  Democrats  of  the  State,  recom- 
mended that  the  bill  be  indefinitely  postponed.  The 
House  debated  at  great  length,  and  finally  amended 
the  bill  by  adding  a  section,  which  provided  that  the 
bill  should  be  inoperative  if  a  majority  of  the  Supreme 


208  VOTING  IN  THE   FIELD 

Court  should  determine  that  it  was  unconstitutional, 
and  that  it  should  be  the  duty  of  the  Governor  to 
obtain  the  opinion  of  the  Court  upon  its  constitution- 
ality before  the  next  presidential  election.  The  bill 
was  then  passed  by  a  yea  and  nay  vote  of  178  to 
107,  all  the  Democrats,  with  one  or  two  exceptions, 
voting  against  it.  On  August  16,  the  bill  was  con- 
sidered in  the  Senate,  various  amendments  were 
offered,  all  of  which  were  rejected,  the  bill  was  passed 
under  a  suspension  of  the  rules  by  a  strict  party 
vote,  eight  Republicans  for  it,  and  three  Democrats 
against  it. 

Governor  Gilmore  was  induced  by  the  opponents 
of  this  bill  to  veto  it  as  unconstitutional,  although 
it  contained  a  provision  that  it  should  not  take  effect 
unless  the  Supreme  Court  should  approve  it  as  consti- 
tutional, and  for  some  reason  he  entrusted  his  veto 
message  to  Mr.  John  G.  Sinclair,  one  of  the  Democratic 
leaders  in  the  House.  Sinclair  presented  it  to  the  House 
on  August  24,  the  last  day  upon  which  it  was  possible 
for  the  veto  to  be  effective  under  the  Constitution. 
The  speaker,  William  E.  Chandler,  ruled  that  it  was 
not  proper  for  the  House  thus  to  receive  a  message 
from  his  Excellency  without  a  vote  of  the  House. 
Mr.  Sinclair  said  that  the  Governor  gave  him  the 
message,  and  desired  him  to  hand  it  to  the  Secretary 
of  State  to  be  submitted  to  the  House,  and  if  the 
Secretary  of  State,  for  any  reason  should  not  see  fit 
to  present  it  to  the  House,  the  Governor  wished 
Sinclair  to  do  so.  He  said  that  he  had  presented  it 
to  the  Secretary  of  State,  who  felt  some  delicacy  in 
presenting  it  to  the  House,  as  he  had  not  received 
it  from  the  Governor  himself.  Mr.  Sinclair  said 
he  understood  that  as  a  member  of  the  House  he 
had  a  right  to  present  anything  from  any  source, 


NEW  HAMPSHIRE  209 

and  he  said,  "I  will  read  it,"  and  opened  the  envelope, 
that  the  document  came  directly  from  the  Governor, 
and  took  out  the  document.  The  speaker  called  him 
to  order,  and  announced  that  he  could  not  proceed 
to  read  the  document  without  the  consent  of  the 
House.  Mr.  Bingham  said  it  was  well  settled  practice 
that  a  gentleman  might  make  a  statement  as  pre- 
liminary to  a  motion,  and  that  in  such  statement  he 
might  read  from  any  document  he  chose,  in  order 
that  the  House  might  understand  the  motion.  He 
appealed  from  the  decision  of  the  Chair.  A  long, 
turbulent  and  somewhat  disorderly  debate  then 
ensued. 

Finally  the  Secretary  of  State  was  announced  by 
the  doorkeeper,  and  as  a  Democratic  member  who 
was  speaking  dropped  into  his  seat,  a  Republican 
member  was  recognized  and  moved  to  adjourn.  The 
speaker  directed  the  roll  to  be  called  on  the  motion  to 
adjourn  and  the  call  began.  Then  for  some  time  con- 
fusion and  disorder  prevailed  so  that  members  could 
not  hear  their  names  called,  and  their  responses  could 
not  be  heard  by  the  Clerk.  Finally  about  seven  o'clock 
in  the  evening,  the  Secretary  of  State  stepped  to  the 
speaker's  desk,  and  announced  that  he  had  a  message 
from  the  Governor,  and  laid  it  on  the  desk.  The 
speaker  took  no  notice  of  it,  the  roll  call  went  on  and 
the  House  adjourned  by  a  vote  of  142  to  88. 

The  result  was  that  the  Republican  majority  by 
the  delay  of  the  Secretary  of  State  and  the  strict 
ruling  of  the  Speaker  defeated  the  reception  of  the 
veto  message,  and  the  bill  became  a  law  without  the 
Governor's  signature.  The  editorial  report  of  the 
proceedings  in  the  New  Hampshire  Statesman  of 
August  24,  1864,  said: 


210  VOTING  IN  THE  FIELD 

"The  sitting  was  of  about  four  hours'  duration,  and 
while  much  of  it  was  exhausted  in  remarks  and  making 
motions,  a  considerable  portion  was  taken  up  with  shouts 
and  yells,  which  were  heard  a  long  way  from  the  State- 
house.  *  *  *  At  the  height  of  the  tumult  a  Grafton 
County  Democrat  became  very  inflammatory,  exclaim- 
ing as  he  passed  along  one  of  the  aisles,  "Revolution! 
Sir,  Revolution!  Revolution!" 

On  August  25,  Mr.  Bingham  moved  that  "the 
paper  from  his  Excellency,  the  Governor,  placed 
upon  the  speaker's  table  yesterday  by  Allan  Tenney, 
Secretary  of  State,  be  now  read  for  the  information 
of  the  House."  Upon  a  call  being  made  for  the 
general  order,  he  moved  that  the  rules  be  suspended, 
which  was  defeated  by  a  vote  of  145  to  102.  A 
motion  was  then  made  to  lay  the  motion  of  Mr. 
Bingham  upon  the  table,  which  was  finally  done,  after 
a  long  debate,  by  a  vote  of  148  to  97. 

On  the  26  of  August  a  message  was  received  from 
the  Governor  through  the  Secretary  of  State,  as 
follows : 

"On  Wednesday,  the  24th  inst.,  I  returned  to  the 
House  of  Representatives  in  which  it  originated  the  bill 
entitled  'An  Act  to  Enable  Qualified  Voters  of  this  State 
Engaged  in  the  Military  or  Naval  Service  of  the  Country 
to  Vote  for  Electors  of  President  and  Vice-president  and 
for  Members  of  Congress,'  with  my  objections  thereto 
as  provided  in  the  forty-fourth  article  of  the  constitu- 
tion of  New  Hampshire.  My  veto  message  which  I  am 
informed  the  House  has  thus  far  refused  to  have  read, 
was  as  follows: 

"There  has  been  presented  to  me  an  Act  entitled 
"An  Act  to  Enable  the  Qualified  Voters  of  the  State  of 
New  Hampshire  engaged  in  the  Military  Service  of  the 
Country  to  Vote  for  Electors  of  the  President  and  Vice- 


NEW  HAMPSHIRE  211 

president  of  the  United  States  and  for  Representatives 
in  Congress."  I  return  it  to  the  House  in  which  it  origi- 
nated with  my  objections.  I  have  heretofore  to  this 
Legislature  expressed  my  honest  desire  to  extend  to  our 
soldiers  in  the  field  the  right  of  suffrage,  but  I  propose 
to  do  it  not  by  a  violation  but  through  an  amendment 
to  the  Constitution.  In  order  not  to  be  misunderstood 
or  misapprehended,  I  quote  from  a  former  message  which 
ought  to  be  familiar  to  every  member  of  the  conjoint 
bodies  who  with  myself  are  charged  with  the  adminis- 
tration of  this  State. 

""The  fact  that  the  citizen  soldiers  of  our  State 
contributed  their  share  to  that  glorious  result  which  struck 
dismay  into  the  rebel  leaders  requires  no  extenuation 
or  apology.  If  our  battle-scarred  veterans  have  not 
the  right  to  vote,  I  know  not  who  has.  I  regret  exceed- 
ingly that  at  the  last  session  of  the  Legislature  measures 
were  not  taken  to  so  amend  the  Constitution  of  this  State 
as  to  secure  this  right  to  all  our  soldiers  without  with- 
drawing them  from  the  field  of  active  operations. 

"Such  an  amendment  has  lately  been  adopted  by 
the  State  of  New  York,  and  I  would  urge  the  proposal  of 
a  similar  amendment  to  our  people  as  an  act  of  simple 
justice  to  our  noble  soldiers.  I  cannot  understand  why 
a  man's  loyalty  should  disfranchise  him,  nor  do  I  believe 
the  liberties  of  a  nation  are  safer  in  other  hands  than 
those  of  the  men  who  have  taken  up  arms  to  defend  them. 
God  helping  me,  our  New  Hampshire  troops  shall  vote 
in  the  State  if  they  are  not  permitted  to  vote  out  of  it!'" 
"Without  referring  to  obvious  objections  to  the  bill 
in  its  details,  some  of  which  it  seems  to  me  leave  no  hope 
of  a  fair  vote  in  which  the  private  soldiers  should  par- 
ticipate with  the  commissioned  officer  in  obedience  to 
his  unbiased  judgment  and  convictions,  it  is  enough  for 
me  to  find  that  upon  the  judgment  of  the  highest  judicial 
tribunal  of  the  State  and  upon  my  own  judgment,  the 
act  is  unconstitutional.  The  next  step  after  the  viola- 


212  VOTING  IN  THE  FIELD 

tion  of  the  Constitution  of  the  State  of  New  Hampshire 
and  of  the  United  States  is  anarchy.  There  is  no  ob- 
ject sufficiently  desirable  to  justify  a  palpable  violation 
of  the  Constitution  which  we  have  all  take  an  oath  to 
support." 

On  the  same  day  a  majority  of  the  Committee 
of  the  House,  which  had  been  appointed  to  consider 
and  report  whether  the  bill  had  become  a  law,  re- 
ported as  follows: 

"The  Committee  finds  on  incontestable  evidence  be- 
fore them  that  said  bill  was  signed  by  the  Speaker  of  the 
House  and  President  of  the  Senate  on  Wednesday,  the 
seventeenth  day  of  August,  1864,  and  was  immediately, 
about  noon  of  the  same  day,  carried  by  the  assistant  clerk 
of  the  Senate  to  the  executive  chamber  and  laid  upon  the 
table  of  His  Excellency,  the  Governor,  the  Legislature 
having  been  in  session  and  not  having  adjourned  although 
the  Governor  was  then  absent. 

"At  that  time,  the  customary  mode  of  presenting  bills 
to  the  Governor  had  been  for  some  officer  of  the  Senate, 
after  bills  have  been  signed  by  the  Speaker  of  the  House 
and  President  of  the  Senate,  to  carry  them  to  the  execu- 
tive chamber  and  lay  them  upon  the  table  of  the  Gover- 
nor; that  five  days  elapsed  after  said  presentation  without 
the  Governor  returning  or  attempting  to  return  said  bill 
to  the  House  in  case  he  disapproved  thereof,  with  his 
objections,  as  required  by  the  forty -fourth  article  of  the 
constitution  of  New  Hampshire.  Upon  these  facts,  this 
Committee  are  of  the  opinion  that  said  bill  has  become  a 
law  although  it  has  not  received  the  approval  of  the 
Governor. 

"The  Committee  have  also  investigated  other  mat- 
ters not  above  stated  bearing  upon  the  subject  referred 
to  them,  but  the  facts  herein  stated  appearing  beyond 
controversy,  the  Committee  being  clearly  of  the  opinion 
that  the  bill  aforesaid  has  become  a  law,  acting  under 


NEW  HAMPSHIRE  213 

the  positive   instruction   of   the  House,   they   report   and 
recommend  the  passage  of  the  accompanying  resolution: 

'"Resolved:  That  the  bill  entitled  "An  Act  to  Enable 
Qualified  Soldiers,  etc."  passed  at  the  present  session 
has  become  a  law  without  the  approval  of  the  Governor 
in  accordance  with  article  forty-four  of  the  constitution 
of  this  State;  that  said  bill  having  been  presented  to  the 
Governor  on  Wednesday,  the  seventeenth  day  of  August, 
1864,  and  no  attempt  having  been  made  by  the  Governor 
to  return  the  same  to  the  House  in  which  it  originated 
until  after  Tuesday,  the  twenty-third  day  of  August, 
1864,  and  that  the  Secretary  of  State  be  directed  to  pre- 
pare and  provide  the  blank  forms  necessary  to  carry  out 
the  provision  of  said  Act  as  therein  directed.' " 

There  was  a  minority  report  that  the  bill  had  not 
become  a  law.  The  resolution  of  the  Committee 
was  ordered  to  a  second  reading,  and  on  August  30 
was  adopted  and  ordered  to  a  third  reading,  and 
passed  by  a  yea  and  nay  vote  of  176  to  112. 

On  August  31,  a  resolution  was  adopted  in  the 
Senate  as  follows: 

"That  the  Clerk  be  directed  to  furnish  the  Justices 
of  the  Supreme  Court  a  copy  of  the  bill  passed  at  the 
present  session  entitled  'An  Act  to  Enable  Qualified  Voters 
of  this  State  engaged  in  the  Military  Service  of  the  Coun- 
try to  Vote  for  Electors  of  President  and  Vice  President 
and  Representatives  in  Congress,'  with  the  request  that 
Justices  of  said  Court  will  furnish  the  Senate  as  soon  as 
possible  with  their  opinion  as  to  the  constitutionality  of 
the  provisions  of  said  bill.5' 

On  the  same  day  a  resolution  was  passed  by  the 
House  by  a  vote  of  157  to  90,  providing 

"That  the  President  of  the  Senate  and  the  Speaker 
of  the  House  be  instructed  in  behalf  of  the  Legislature 
to  transmit  to  the  Justices  of  the  Supreme  Judicial  Court 


214  VOTING  IN  THE  FIELD 

copies  of  the  record  of  the  proceedings  of  the  Legisla- 
ture upon  the  Soldiers'  Voting  Bill  passed  at  the  present 
session  and  such  other  evidence  as  they  may  deem  ma- 
terial and  request  the  opinion  of  the  Court  upon  the  ques- 
tion whether  or  not  said  bill  has  become  a  law  without 
the  approval  of  the  Governor  and  to  take  such  measures 
as  they  may  deem  advisable  to  establish  the  validity  and 
carry  into  effect  the  provisions  of  said  law." 

It  will  be  noted  that  the  act  made  it  the  duty 
of  the  Governor  to  obtain  the  opinion  of  the  Supreme 
Court  upon  the  constitutionality  of  the  bill  and 
make  it  known  through  the  newspapers  on  or  before 
the  next  presidential  election.  It  does  not  appear 
what  the  Governor  did  under  this,  but  Chandler  and 
Bell,  respectively  Speaker  of  the  House  and  President 
of  the  Senate,  by  a  memorandum  printed  with  the 
act,  stated  that  in  accordance  with  the  concurrent 
resolution  of  both  branches  of  the  Legislature,  passed 
August  31,  1864,  they  duly  requested  the  opinion 
of  the  Justices  upon  the  question  whether  the  bill 
had  become  a  law  without  the  approval  of  the 
Governor,  and  on  the  twenty-seventh  of  September 
received  from  the  Court  their  unanimous  opinion, 
dated  September  22,  1864,  that  the  bill  has  become 
a  law,  and  is  now  a  valid  and  binding  statute  of  the 
State.1 

The  Justices,  although  requested  by  both  branches 
of  the  Legislature,  made  their  reply  to  the  Senate. 
They  said  that 

"Upon  consideration  and  consultation,  we  have  come 
to  the  conclusion  that  the  bill  is  free  from  constitutional 
objections.  We  understand  that  it  is  desired  that  our 
opinion  should  be  given  before  the  impending  adjourn- 


Laws  of  New  Hampshire,  1863-5,  p.  3061,  Ch.  4036. 


NEW  HAMPSHIRE 

ment  of  the  Legislature.  We  submit  the  result  of  our 
examination,  therefore,  without  waiting  to  state  the  rea- 
sons upon  which  our  opinion  is  founded.  We  may  take 
occasion  to  explain  the  grounds  of  our  opinion  hereafter." 

Judge  Doe  did  not  participate  in  giving  this  opinion. 
Later,  on  September  9th,  I  think,  although  the  report 
is  silent  as  to  the  date,  the  Justices  filed  an  elaborate 
opinion  of  ten  printed  pages,  in  which  they  discussed 
the  entire  subject  of  the  power  of  the  Legislature  with 
regard  to  authorizing  voting  out  of  the  State.  They 
said,  in  the  first  place,  that  the  choice  of  electors  de- 
pended upon  a  provision  of  the  Constitution  of  the 
United  States,  which  was  that  "Each  state  shall 
appoint,  in  such  manner  as  the  Legislature  thereof 
may  direct,  a  number  of  electors,  etc."  They  say: 

"The  appointment  of  electors  is  to  be  made  in  such 
manner  as  the  Legislature  may  direct.  The  whole  dis- 
cretion as  to  the  manner  of  the  appointment  is  lodged 
in  the  broadest  and  most  unqualified  terms  in  the  Legis- 
lature, and  we  can  see  no  room  for  serious  doubt  that 
the  Legislature,  being  clothed  with  this  general  authority, 
may  direct  the  manner  in  which  the  electors  may  be  ap- 
appointed.  They  act  within  the  scope  of  their  constitu- 
tional powers  in  directing  that  the  appointment  shall  be 
made  by  the  votes  of  all  the  qualified  voters  of  the  State; 
the  voters  in  the  military  service  giving  their  votes  at  the 
places  where  they  may  be  on  the  day  of  the  election;  and 
the  other  voters  in  the  towns  and  places  where  they  reside." 

In  the  case  of  the  election  of  Representatives  to 
Congress  they  said,  that  this  was  a  matter  controlled 
by  the  Constitution  of  the  United  States,  and  not 
by  the  State  constitution.  Congress  had  plenary 
power  over  that,  and  the  power  of  Congress  to  make 
and  alter  regulations  with  reference  to  the  election 


216  VOTING  IN  THE  FIELD 

of  representatives  "leaves  no  room  for  serious  doubt 
that  the  Constitution  regards  the  law  prescribing 
the  place  where  the  elector  should  vote  as  a  mere 
regulation  for  the  exercise  of  his  right,  and  not  as  a 
qualification  of  the  elector  within  the  meaning  of  the 
term  as  used  in  the  Constitution." 

They  reviewed  the  cases  which  had  been  decided, 
including  Chase  vs.  Miller  in  Pennsylvania,  and 
Morrison  vs.  Springer  in  Iowa,  and  referred  especially 
to  the  opinion  of  the  Justices  of  the  Supreme  Court 
of  Vermont  of  April  1,  1864,  upon  the  act  provid- 
ing for  voting  in  the  field,  and  said  that  "these 
questions  were  very  deliberately  and  ably  considered 
by  the  learned  Judges  of  Vermont.  Their  opmion  is 
regarded  as  directly  in  point,  and  after  a  careful 
examination  of  the  opinion,  we  find  no  difficulty  in 
arriving,  as  they  did,  at  the  opinion  that  the  bill 
submitted  to  us  is  free  from  constitutional  objection." 

This  opinion  was  signed  by  Chief  Justice  Perley, 
and  Associate  Justices  Sargent,  Bellows,  Nesmith 
and  Bartlett.1 

On  September  23,  1864,  the  Justices  sent  an 
opinion  to  the  Senate  and  House  of  Representatives 
upon  the  question  whether  the  Soldiers'  Voting  Bill 
became  a  law  without  the  signature  of  the  Governor. 
This  opinion  was  full  and  elaborate  and  held  that 
the  bill  was  a  law.  It  was  signed  by  Justices  Sargent, 
Bellows  and  Nesmith.  Chief  Justice  Perley  and 
Associate  Justice  Bartlett  signed  a  memorandum  at 
the  end  of  the  opinion,  saying  that  "they  did  not 
regard  it  as  any  part  of  their  official  duty  in  a  case 
like  this  to  find  from  evidence  submitted  to  them  the 
facts  which  are  to  be  the  foundation  of  their  opinion," 

1  45  N.  H.,  596. 


NEW  HAMPSHIRE  217 

but  they  said,  "Upon  the  facts  assumed  in  the  fore- 
going opinion,  we  agree  in  the  conclusion  that  the  act 
in  question  has  become  a  law." 

Mr.  Justice  Doe  signed  a  memorandum  as  follows: 
"My  opinion  is  that  said  bill  has  become  a  law."1 

The  bill  thus  having  become  a  law,  the  soldiers' 
vote  was  taken  in  the  field  at  the  presidential  election 
of  1864.  It  was  as  follows: 

For  Lincoln  2,066;    for  McClellan,  690. 

For  Congressmen  in  the  first  district:  —  Marston, 
Republican,  747;  Marcey,  Democrat,  40. 

For  Congressmen  in  the  second  district :  —  Rollins, 
Republican,  598;  Clark,  Democrat,  62. 

For  Congressmen  in  the  third  district :  — Patter- 
son, Republican,  708;  Bingham,  Democrat,  55. 

It  will  be  noticed  that  the  Republican  Congressmen 
together  received  thirteen  votes  less  than  the  Lincoln 
electors,  and  that  the  Democratic  Congressmen,  one 
of  whom  was  Bingham,  who  had  vigorously  opposed 
the  Soldiers'  Voting  Bill,  received  535  less  than  the 
McClellan  electors. 

The  act  of  1863  enabled  all  voters  in  the  military 
or  naval  service  of  the  State  or  United  States  to  vote 
out  of  the  State  by  proxy  for  State  and  Federal 
officers,  that  is  by  sending  the  vote  to  some  person, 
whom  they  might  authorize  by  a  power  of  attorney,  to 
cast  it  for  them  at  home.  It  followed  very  closely  the 
general  provisions  of  the  act  of  New  York  passed  in 
April,  1863,  and  vetoed  by  Governor  Seymour. 

The  act  of  1864  enabled  all  voters  in  the  actual 
military  service  of  the  United  States  to  vote  in  the 
field,  in  the  posts,  camps  and  places  where  they  were 


1  The  Journals  of  the  Senate  and  House  for  1863  and  1864  have  not  been 
printed  and  the  legislative  action  is  stated  from  an  examination  of  the  manu- 
script records  in  the  office  of  the  Secretary  of  State. 


218  VOTING  IN  THE  FIELD 

on  election  day  for  presidential  electors  and  Con- 
gressmen only.  They  could  vote  where  there  was  a 
regiment,  a  battery,  or  a  part  of  a  regiment  not  less 
than  one  company  or  part  of  a  company  under  a 
separate  command,  as  fully  as  they  would  be  entitled 
to  vote  at  the  place  of  election  in  the  State.  The 
three  ranking  officers  were  to  act  as  judges  of  elec- 
tions, or  in  case  of  their  absence,  inability  or  refusal 
to  act,  their  duties  were  to  be  performed  by  the 
officers  next  in  rank.  The  officer  highest  in  rank  was 
to  be  chairman  of  the  board,  and  act  as  moderator 
at  the  election.  They  were  to  appoint  a  qualified 
voter  to  act  as  clerk,  and  they  and  the  clerk  were  to 
take  an  oath  that  they  would  support  the  Constitu- 
tion of  the  United  States  and  of  the  State  of  New 
Hampshire,  and  would  perform  their  duties  according 
to  law,  and  studiously  endeavor  to  prevent  all 
fraud,  deceit  or  abuse  in  conducting  the  election. 
This  oath  was  to  be  subscribed  and  returned  with  the 
result  of  the  election.  The  polls  were  to  be  opened 
at  an  hour  determined  by  the  judges,  and  closed  at  an 
hour  determined  by  the  major  vote  of  the  voters 
present,  and  notice  of  the  time  of  closing  of  the  polls 
was  to  be  given  at  least  one  hour  before  they  were 
closed.  Every  ballot  was  to  be  identified  by  the 
name  of  the  person  voting  and  the  name  of  the  town 
or  ward  in  which  he  was  entitled  to  vote,  and  the 
ballots  were  to  be  deposited  in  one  box.  The  judges 
were  to  be  satisfied  that  each  person  offering  to  vote, 
would  be  entitled  to  vote  in  the  town  or  ward  shown 
upon  his  ballot.  Correct  lists  were  to  be  kept  con- 
taining the  names  of  the  voters  and  their  places  of 
residence,  which  were  to  be  certified  by  the  judges 
and  by  the  clerk. 

After  the  polls  were  closed,   the  judges  were  to 


NEW  HAMPSHIRE  219 

canvass  the  votes  cast,  and  make  a  statement  of  the 
result  in  writing,  which  canvass  and  the  statement  was 
to  be  transmitted  as  soon  as  practicable  to  the 
Governor,  together  with  the  lists  of  voters.  All  bal- 
lots cast  were  to  be  sealed  up  and  transmitted  to  the 
Secretary  of  State.  The  statement,  lists  and  ballots 
were  to  be  laid  before  the  Governor  and  Council, 
and  by  them  examined,  and  the  votes  counted  as  if 
duly  cast  within  the  State.  The  Secretary  of  State 
was  required  seasonably  to  prepare  and  have  printed 
all  necessary  blank  forms  to  carry  out  the  provisions 
of  the  act,  and  furnish  the  same  to  the  commanding 
officer  of  each  company  or  battery.1  This  law  took 
effect  on  September  22,  1864. 

On  August  31,  1864,  an  act  was  passed  in  relation 
to  counting  the  votes  under  this  act,  which  provided 
that  the  Governor  and  Council  should  reject  any 
votes  returned  as  cast  by  voters  in  the  military  service, 
which  might  clearly  appear  to  them  to  be  cast  by 
persons  not  qualified  voters  in  the  State,  and  that 
the  Secretary  of  State  upon  receiving  the  return  of  the 
votes  of  soldiers  in  the  field,  should  transmit  to  the 
town  clerk  of  each  town  or  ward  in  the  State  a  certi- 
fied list  of  the  names  of  voters  having  their  residence 
in  such  town  or  ward  whose  ballots  had  been  returned 
to  him  as  having  been  cast  by  them  in  the  field. 
The  act  also  made  it  the  duty  of  the  town  clerk  to 
compare  the  list  received  from  the  Secretary  of  State 
with  the  check  list  of  the  town,  and  if  any  persons 
should  have  voted  whose  names  were  not  on  the  check 
list,  he  should  immediately  give  notice  to  the  Secre- 
tary of  State.2 

On  August  19,  1864,  a  concurrent  resolution  was 

1  Ch.  4030,  N.  H.  Laws,  August  Session,  1864,  p.  3061. 

2  Ibid.,  p.  3064. 


VOTING  IN  THE  FIELD 

passed  by  the  Senate  and  the  House  requiring  the 
Selectmen  to  take  the  sense  of  the  voters  on  the 
question  whether  it  was  expedient  that  a  Convention 
be  called  to  revise  the  Constitution  so  as  "to  enable 
the  qualified  voters  of  this  State  engaged  in  the 
military  and  naval  service  of  the  country  in  time  of 
war,  insurrection  or  rebellion  to  exercise  the  right 
of  suffrage  while  absent  from  the  State."  *  Two 
hundred  and  eleven  towns  voted  on  this  question; 
18,422  votes  were  in  favor  of  the  Convention,  and 
15,348  against  it,  making  a  majority  of  3,070  votes 
for  holding  a  convention.  1,907  votes  were  in  favor 
of  limiting  the  action  of  the  convention  to  the  ques- 
tion of  amending  the  Constitution  so  as  to  allow 
soldiers  to  vote  when  out  of  the  State.  This  result 
was  shown  by  a  canvass  of  votes  by  the  Legislature 
on  June  21,  1865.  Whereupon  a  resolution  was 
passed  that  it  was  inexpedient  to  provide  for  calling 
a  convention  at  that  time,  and  that  the  subject  be 
referred  to  the  consideration  of  the  next  Legislature. 
In  the  legislative  session  of  1866,  the  matter  was 
further  considered,  and  finally  it  was  voted  that  it 
was  inexpedient  to  call  a  convention  at  all. 

It  is  a  curious  thing  to  note  that  in  all  this  matter 
of  legislation  to  enable  New  Hampshire  soldiers  to 
vote  in  the  field,  the  New  Hampshire  sailors  were 
apparently  forgotten,  or  at  all  events,  they  were  not 
provided  for.  Perhaps  it  was  thought  that  their 
conditions  of  service  were  so  varied  as  to  make  it 
difficult  to  frame  a  law  to  cover  the  proceedings  for 
them  in  many  cases. 

All  laws  for  soldiers'  voting  in  the  field  were 
repealed  by  Section  21,  Chapter  78,  of  the  Session 


1  Ch.  4030.  N.  H.  Laws,  August  Session,  1864,  p.  3068. 


NEW  HAMPSHIRE  221 

Laws  of   1897   approved  March  24,   1897,   so  far  as 
they  were  then  in  force. 

In  the  Winter  of  1864,  all  the  soldiers  who  could 
be  spared  from  the  front  were  permitted  to  go  home 
to  New  Hampshire  to  vote,  as  the  State  was  likely 
to  be  very  close  at  the  March  election.  Major 
George  A.  Bruce  was  sent  from  the  camp  of  two  New 
Hampshire  regiments  to  see  General  Butler  and  get 
an  order.  He  remembers  that  he  went  but  why  he 
wras  selected,  or  at  whose  initiation,  he  does  not  know. 
At  any  rate  he  secured  the  United  States  authority, 
and  obtained  an  order  of  General  Butler,  which  was 
read  at  dress  parade  of  the  two  regiments,  giving  a 
leave  of  absence  of  twelve  days  to  every  legal  voter 
who  desired  to  avail  himself  of  the  privilege.  He  says : 

"There  was  no  attempt  to  distinguish  between  Re- 
publicans and  Democrats.  In  consequence  of  many 
threats,  however,  that  in  certain  towns  the  soldiers  would 
not  be  permitted  to  vote  in  case  of  their  return,  the  order 
provided  that  the  soldiers  should  wear  side  arms,  and  be 
considered  as  on  special  duty  and  under  military  orders, 
that  is,  officers  were  to  take  their  swords  and  belts,  and 
the  men  their  bayonets  and  belts,  which  they  were  to 
wear  on  all  occasions  during  their  absence.  Free  trans- 
portation home  and  return  was  given  to  them.  Three 
hundred  and  ninety  soldiers  constituted  the  voting  con- 
tingent which  went  to  New  Hampshire.  At  four  P.M., 
March  3rd,  this  contingent  marched  in  military  order 
from  camp  to  the  station,  and  was  cheered  by  thousands 
of  men  from  other  States. 

"From  Boston  to  Portsmouth  they  were  taken  by 
the  Steamer  Guide,  not  arriving  until  one  P.M.,  on  account 
of  a  heavy  fog.  Only  about  two-thirds  of  the  voters 
arrived  at  their  several  homes  in  season  to  vote,  the  others 
being  detained  by  a  wash-out  on  the  Boston  and  Maine 
Railroad  near  Newmarket,  New  Hampshire." 


VOTING  IN  THE  FIELD 

The  following  account  by  Major  Bruce,  who  was 
an  officer  of  the  13th  New  Hampshire  Volunteers,  of 
voting  in  the  field  under  the  New  Hampshire  bill  of 
1864  is  interesting.  He  says: 

"The  two  Commissioners,  one  representing  the  Repub- 
lican, and  one  the  Democratic,  party  came  to  the  13th 
New  Hampshire  bringing  with  them  a  list  of  the  legal 
voters  in  each  regiment  procured  from  the  different  towns, 
and  permitted  only  those  to  vote  whose  names  were  on 
that  list.  There  were  quite  a  number  who  had  become 
of  age  during  their  service  whose  names  had  not  been 
added  to  these  lists  of  voters,  and  therefore  they  were 
not  permitted  to  vote.  On  a  certain  day  at  dress  parade 
the  regiment  was  notified  that  between  certain  hours  on 
a  fixed  day  an  election  would  be  held  for  President  of  the 
United  States  and  Representatives  in  Congress,  at  which 
they  would  be  permitted  to  vote.  I  was  present  and 
voted  on  that  day.  There  was  no  speechmaking  and 
no  gathering  of  the  regiment  as  a  whole.  Each  man 
came  up  to  the  polling  place  and  voted  by  himself.  He 
was  given  two  ballots,  one  representing  the  Democratic, 
and  one  the  Republican,  candidates,  and  secretly,  with- 
out knowledge  of  any  one,  he  deposited  whichever  vote 
he  saw  fit.  There  had  been  no  campaign  literature  cir- 
culated and  no  speechmaking.  There  probably  never 
was  a  purer  election  held  in  the  world  than  that  which 
was  held  under  the  two  Commissioners  from  New  Hamp- 
shire. Both  Commissioners  expressed  their  opinion  to 
the  effect  that  no  influence  was  exercised  on  the  part  of 
anybody  to  vote  one  way  or  the  other." 


CHAPTER  XXIII 

MARYLAND 

STRANGE  as  it  may  seem,  Maryland  was  the  only 
State  in  which  the  election  of  State  officers  or  the 
election  of  presidential  electors,  or  members  of  Con- 
gress, was  substantially  affected  by  the  votes  of  soldiers 
voting  in  the  field.  In  nearly  all  the  other  States 
where  soldiers  voted  in  the  field  the  result  of  the 
elections  would  have  been  precisely  the  same  if  soldiers 
had  not  voted  at  all.  All  the  acts  of  the  various  State 
Legislatures  and  all  the  amendments  of  the  Con- 
stitutions practically  went  for  nothing,  except  in  the 
single  State  of  Maryland.  This  justifies  a  somewhat 
extended  consideration  of  what  was  done  in  that  state 
about  soldiers  voting  in  the  field. 

Maryland  was  a  border  slave  State.  Its  people 
had  a  very  keen  feeling  of  the  importance  of  the 
State.  They  believed  in  the  right  of  a  state  to  sepa- 
rate from  the  other  states  at  its  pleasure,  and  when 
the  Southern  States  attempted  to  separate  from  the 
other  states  they  believed  they  were  acting  within 
their  strict  constitutional  rights.  The  idea  that  the 
government  of  the  United  States  was  supreme  over 
all  the  territory  of  all  the  states  in  the  exercise  of  its 
constitutional  powers  was  not  accepted  by  them. 
They  believed  in  the  sacred  soil  of  a  sovereign  state, 
and  that  the  federal  government  had  no  right  upon 
that  soil  for  any  purpose  against  the  will  of  the  state. 
But  their  geographical  position  between  Washington 
and  the  North  controlled  the  situation.  It  was 


224  VOTING  IN  THE  FIELD 

necessary  for  the  Union  cause  that  Maryland  should 
be  subjugated,  and  she  was  subjugated. 

The  Baltimore  riots,  and  the  telegrams  of  the 
secession  Marshal  of  Baltimore  for  riflemen  and 
troops  from  the  mountains  of  Maryland  and  Virginia, 
saying,  "We  will  fight  them  and  whip  them,  or  die," 
followed  by  the  enlistment  of  over  15,000  State  volun- 
teers, the  burning  of  bridges  and  cutting  of  telegraph 
wires  to  the  north  of  Baltimore,  closing  communica- 
tion with  the  North  for  several  days,  showed  plainly 
that  the  people  would  not  aid  the  Federal  government 
if  they  could,  but  would  rather  fight  it.  But  when, 
on  May  13,  1861,  General  Butler  seized  the  forts 
commanding  Baltimore,  and  took  control  of  Chesa- 
peake Bay  and  of  the  rivers  entering  into  it,  —  the 
Patapsco,  Pawtuxet,  and  the  Potomac,  —  all  parts  of 
the  State  were  dominated  by  the  Federal  troops. 
Baltimore  was  seized,  and  Maryland  was  then  sub- 
jugated. At  the  same  time  the  House  of  Delegates 
was  passing  resolutions  protesting  against  the  pollu- 
tion of  the  soil  of  Maryland  by  the  foot  of  the  Federal 
Army. 

Eight  companies  of  troops  were  raised  in  Maryland 
for  the  Confederate  Army  and  mustered  into  its 
service  on  May  21,  and  22,  1861.  They  fought  with 
the  Confederate  Army  in  all  its  campaigns,  and  some 
of  them  surrendered  at  Appomattox.  So  many  of 
Maryland's  men  went  South  that  an  artillery  regiment 
was  organized  from  them  at  Winchester,  Virginia,  in 
the  fall  of  1862.  There  was  also  organized  from  the 
refugees  from  Maryland,  a  Second  Regiment  of  Mary- 
land Cavalry,  a  Second,  Third  and  Fourth  Regiment 
of  Maryland  Artillery,  all  of  which  fought  in  the 
Confederate  Army. 

It  should  be  remembered  in  this  connection  that 


MARYLAND  225 

Maryland  put  into  the  United  States  service  in  the 
rebellion  three  regiments,  two  battalions  and  one 
independent  company  of  cavalry;  six  batteries  of 
light  artillery;  and  nineteen  regiments  and  one  in- 
dependent company  of  infantry;  comprising  in  all 
48,855  men,  including  2,217  sailors.1  Of  these  troops 
8,718  were  colored. 

The  Legislature  which  had  been  called  in  session 
"to  deliberate  and  consider  of  the  condition  of  the 
State"  at  Frederick  City,  first  resolved  that  they 
had  no  authority  to  pass  an  ordinance  of  secession, 
and  then  proceeded  to  pass  through  the  Senate  a  bill 
creating  a  Board  of  Public  Safety,  which  it  was 
claimed  was  "simply  a  substitute  for  an  ordinance  of 
secession."  It  then  adopted  resolutions  in  regard  to 
the  calling  of  a  "sovereign  convention"  by  a  vote  of 
43  to  12  in  the  House,  and  11  to  3  in  the  Senate. 
Both  Houses  appointed  a  Committee  to  visit  the 
President  of  the  United  States  and  the  "President  of 
the  Southern  Confederacy."  The  Committee  to  visit 
the  President  of  the  United  States  reported  that  the 
purpose  for  which  they  were  appointed  was  defeated 
by  the  movement  of  Federal  troops  on  Virginia,  and 
therefore  they  did  not  feel  authorized  to  see  the 
President.  The  Committee  to  wait  on  the  "President 
of  the  Southern  Confederacy"  performed  their  duty, 
and  brought  back  a  letter  from  President  Davis 
expressing  his  gratification  that  Maryland  was  en- 
listed on  the  side  of  peace  and  reconciliation.2 

The  Legislature  adjourned  from  time  to  time  until 
the  seventeenth  of  September,  1861,  when  there  was  ap- 
prehension that  it  would  pass  an  ordinance  of  secession. 
Simon  Cameron,  Secretary  of  War,  sent  an  order  to 

1  History  of  Western  Maryland,  Scharf,  Vol.  1,  p.  299. 
*  Ibid.,  pp.  202,  203. 


226  VOTING   IN  THE  FIELD 

General  Banks,  commanding  in  Maryland,  in  which 
he  said:  "The  passage  of  an  act  of  secession  by  the 
Legislature  of  Maryland  must  be  prevented.  If 
necessary  all  or  any  part  of  the  members  must  be 
arrested.  Exercise  your  own  judgment  as  to  time 
and  manner,  but  do  the  work  effectively." 

On  the  following  day  General  McClellan  wrote 
Banks  a  letter  giving  the  details  for  making  the 
arrests,  and  saying  "It  is  understood  that  you  ar- 
ranged with  General  Dix  and  Governor  Seward  the 
modus  operandi."  The  Legislature  did  not  assemble 
with  a  quorum.  A  considerable  number  of  its  mem- 
bers were  arrested  on  the  seventeenth  and  eighteenth, 
and  the  Union  men  stayed  away  from  the  session,  so 
that  the  Clerks  were  obliged  to  call  the  rolls  and 
declare  the  Houses  adjourned.  It  is  said  that  letters 
were  found  in  the  possession  of  some  of  the  members 
of  the  Legislature  who  were  arrested,  showing  that 
the  Confederate  General  Johnson  was  to  cross  the 
Potomac  and  occupy  Frederick,  and  an  ordinance  of 
secession  was  to  be  at  once  passed  under  the  protec- 
tion of  Confederate  bayonets.  It  is  quite  difficult  to 
ascertain  the  exact  truth  from  the  conflicting  state- 
ments and  records  of  the  time;  but  I  think  it  may 
fairly  be  said  that  if  the  Legislature  had  been  suffered 
to  meet  and  act  freely,  it  would  probably  have  passed 
an  ordinance  of  secession.1 

In  this  state  of  affairs  the  election  for  State 
officers  was  held,  November  6,  1861.  On  October 
29,  by  order  of  the  Secretary  of  War,  General 
Banks  directed  furloughs  to  be  given  to  the  soldiers 
of  the  First,  Second  and  Third  Maryland  Union 
troops,  for  such  length  of  time  as  would  enable  them 

1  History  of  Western  Maryland,  Scharf,  Vol.  1,  207,  211.  Memoirs  of 
John  Adams  Dix,  Vol.  2,  p.  32. 


MARYLAND  227 

to  vote  on  the  6th  of  November,  where  they  were 
entitled  to  vote,  and  to  return  to  their  duty  on  the 
seventh  of  November.1  These  regiments  were  at  that 
time  a  part  of  the  Army  of  the  Potomac.  The  order 
provided  that  "the  most  liberal  and  prompt  circula- 
tion should  be  given  to  its  instructions,  in  order  to 
secure  with  certainty  the  carrying  into  effect  of  the 
design  proposed,"  and  that  wherever  it  was  necessary 
in  order  to  facilitate  the  presence  of  the  soldiers  at 
their  places  of  voting,  they  were  to  be  furnished  with 
transportation,  and  that  the  soldiers  while  absent 
should  be  replaced  for  the  time  with  other  troops.2 

There  was,  of  course,  much  apprehension  that 
persons  who  had  gone  into  the  Confederate  service 
from  Maryland,  and  other  citizens  who  had  fled  from 
Maryland  to  Virginia,  would  attempt  to  return  and 
vote  at  this  election,  especially  in  some  of  the  country 
counties,  and  on  October  29,  the  Chief  of  McClellan's 
staff  issued  an  order  that  troops  be  sent  to  the 
different  polling  places  to  protect  the  Union  voters, 
and  "to  see  that  no  disunionists  are  allowed  to  in- 
timidate them  or  to  interfere  in  any  way  with  their 
rights."  This  order  also  directed  the  arrest  and 
holding  in  confinement  until  after  the  election  of  "all 
disunionists  who  are  known  to  have  returned  from 
Virginia  recently,  and  who  show  themselves  at  the 
polls."  For  this  purpose  the  commanding  General 
was  authorized  to  suspend  the  right  of  habeas  corpus. 
General  Dix  thereupon  issued  an  order  on  November 
1,  1861,  to  the  United  States  Marshal  of  the  City  of 
Baltimore,  in  which  he  said:  — 


1  Confederate  Military  History  of  Maryland;  Vol.  2,  pp.  29,  101,  106. 

2  McPherson's  History  of  the  Rebellion,  p.  309. 


228  VOTING  IN  THE  FIELD 

"Information  has  come  to  my  knowledge  that  certain 
individuals  who  formerly  resided  in  this  State,  and  who  are 
known  to  have  been  recently  in  Virginia  bearing  arms 
against  the  authority  and  forces  of  the  United  States,  have 
returned  to  their  former  homes  with  the  intention  of  taking 
part  in  the  election  of  the  6th  of  November  instant,  thus 
carrying  out  at  the  polls  the  treason  they  have  committed 
in  the  field.  There  is  reason  also  to  believe  that  other 
individuals  lately  residents  in  Maryland,  who  have  been 
engaged  in  similar  acts  of  hostility  to  the  United  States, 
or  in  actively  aiding  and  abetting  those  in  arms  against  the 
United  States,  are  about  to  participate  in  the  election  for 
the  same  treacherous  purpose,  with  the  hope  of  carrying 
over  the  State  by  disloyal  votes  to  the  cause  of  rebellion 
and  treason.  I,  therefore,  by  virtue  of  the  authority  vested 
in  me  to  arrest  all  persons  in  rebellion  against  the  United 
States,  require  you  to  take  into  custody  all  such  persons 
in  any  of  the  election  districts  or  precincts  in  which  they 
may  appear  at  the  polls  to  effect  their  criminal  attempt  to 
convert  the  elective  franchise  into  an  engine  for  the  sub- 
version of  the  Government,  and  for  the  encouragement  and 
support  of  its  enemies. 

"  In  furtherance  of  this  object,  I  request  the  judges  of 
election  of  the  several  precincts  of  the  State,  in  case  any  such 
person  shall  present  himself  and  offer  his  vote,  to  commit 
him  until  he  can  be  taken  into  custody  by  the  authority  of 
the  United  States;  and  I  call  on  all  good  and  loyal  citizens 
to  support  the  judges  of  election,  the  United  States  mar- 
shal, and  his  deputies,  and  the  provost  marshal  of  Balti- 
more and  police,  in  their  efforts  to  secure  a  free  and  fair 
expression  of  the  voice  of  the  people  of  Maryland,  and  at 
the  same  time  to  prevent  the  ballot-box  from  being  pol- 
luted by  treasonable  votes." 

The  same  day,  he  addressed  a  letter  to  the  inspec- 
tors of  the  election  at  New  Windsor,  Carroll  county, 
saying: 


MARYLAND  229 

"I  have  received  your  letter  of  the  29th  ultimo,  asking 
me  to  issue  a  proclamation  authorizing  you  to  administer 
to  all  persons  of  doubtful  loyalty,  who  offer  their  votes  at 
the  approaching  election,  an  oath  to  support  the  Constitu- 
tion of  the  United  States.  If  I  had  the  power  I  would 
most  cheerfully  do  so,  for  no  one  who  is  false  to  the 
Government  ought  to  be  allowed  to  vote.  But  the  Con- 
stitution and  laws  of  Maryland  provide  for  the  exercise  of 
the  elective  franchise  by  regulations  with  which  I  have  no 
right  to  interfere.  I  have  this  day  issued  an  order,  of 
which  I  enclose  a  copy,  to  the  United  States  Marshal  and 
the  provost  marshal  of  Baltimore  to  arrest  any  persons 
who  have  been  in  arms  in  Virginia  if  they  appear  at  the 
polls  and  attempt  to  vote,  as  we  are  told  some  such 
persons  intend,  and  to  take  into  custody  all  who  aid  and 
abet  them  in  their  treasonable  designs;  and  I  have  re- 
quested the  judges  of  election,  in  case  any  such  person 
presents  himself  at  the  polls  and  attempts  to  vote,  to 
commit  him  until  he  can  be  taken  into  custody  by  the 
authority  of  the  United  States. 

"  I  consider  it  of  the  utmost  importance  that  the  election 
should  be  a  fair  one,  and  that  there  should  be  no  obstruc- 
tion to  the  free  and  full  expression  of  the  voice  of  the 
people  of  the  State,  believing,  as  I  do,  that  it  will  be 
decidedly  in  favor  of  the  Union.  But  it  is  in  the  power  of 
the  judges  of  election,  under  the  authority  given  them, 
to  satisfy  themselves  as  to  the  qualifications  of  the  voters, 
to  put  to  those  who  offer  to  poll  such  searching  questions 
in  regard  to  residence  and  citizenship  as  to  detect  traitors, 
and,  without  any  violation  of  the  Constitution  or  laws  of 
Maryland,  to  prevent  the  pollution  of  the  ballot-boxes  by 
their  votes."1 

On  the  other  hand,  it  was  claimed  that  there  were 
not  enough  persons  who  had  left  the  State  to  change 
the  election  if  they  all  returned  to  vote.  But  the 


McPherson's  History,  p.  308. 


230  VOTING  IN  THE   FIELD 

fact  remains  that  many  arrests  were  made  in  the 
various  counties  of  the  State,  and  in  Baltimore,  and 
voters  were  required  to  swear  that  they  had  not  been 
guilty  of  treasonable  acts  toward  the  State,  or  toward 
the  Federal  Government,  though  it  is  difficult  to  see 
how  they  could  lawfully  be  interrogated  upon  those 
points.  The  result  was  that  the  Union  ticket  was 
elected  in  1861  by  a  majority  of  31,438  votes,  and 
Governor  Bradford  and  the  Legislature  went  into 
office,  as  it  was  said,  with  "the  knowledge  that  they 
owed  their  elevation  to  power  to  those  who  controlled 
the  military  powers  then  within  our  borders.1 

There  continued  to  be  the  same  difficulty  in  Mary- 
land with  regard  to  disloyal  voting  and  on  October 
27,  1863,  an  order  was  made  by  General  Schenck, 
commanding  the  department,  which  recited  that 

"It  is  known  that  there  are  many  evil  disposed  per- 
sons, now  at  large  in  the  State  of  Maryland,  who  have 
been  engaged  in  rebellion  against  the  lawful  Government, 
or  have  given  aid  and  comfort  or  encouragement  to  others 
so  engaged,  or  who  do  not  recognize  their  allegiance  to  the 
United  States,  and  who  may  avail  themselves  of  the 
indulgence  of  the  authority  which  tolerates  their  presence 
to  embarrass  the  approaching  election,  or  through  it  to 
foist  enemies  of  the  United  States  into  power.  It  is  there- 
fore ordered: 

"I.  That  all  provost-marshals  and  other  military  offi- 
cers do  arrest  all  such  persons  found  at,  or  hanging  about, 
or  approaching  any  poll  or  place  of  election  on  the  4th  of 
November,  1863,  and  report  such  arrest  to  these  head- 
quarters. 

"II.  That  all  provost-marshals  and  other  military 
officers  commanding  in  Maryland,  shall  support  the  judges 
of  election  on  the  4th  of  November,  1863,  in  requiring  an 

1  Scharf's  History  of  Maryland,  Vol.  3,  p.  460. 


MARYLAND  231 

oath  of  allegiance  to  the  United  States,  as  the  test  of 
citizenship  of  any  one  whose  vote  may  be  challenged  on 
the  ground  that  he  is  not  loyal,  or  does  not  admit  his 
allegiance  to  the  United  States,  which  oath  shall  be  in  the 
following  form  and  terms: 

"I  do  solemnly  swear  that  I  will  support,  protect  and 
defend  the  Constitution  and  Government  of  the  United 
States  against  all  enemies,  whether  domestic  or  foreign; 
that  I  hereby  pledge  my  allegiance,  faith  and  loyalty  to 
the  same,  any  ordinance,  resolution,  or  law  of  any  State 
Convention  or  State  Legislature  to  the  contrary  notwith- 
standing; that  I  will  at  all  times  yield  a  hearty  and  willing 
obedience  to  the  said  Constitution  and  Government,  and 
will  not  either  directly  or  indirectly,  do  any  act  in  hostility 
to  the  same,  either  by  taking  up  arms  against  them,  or 
aiding,  abetting,  or  countenancing  those  in  arms  against 
them;  that,  without  permission  from  the  lawful  authority, 
I  will  have  no  communication,  direct,  or  indirect,  with  the 
States  in  insurrection  against  the  United  States,  or  with 
either  of  them,  or  with  any  person  or  persons  within  said 
insurrectionary  States;  and  that  I  will  in  all  things  deport 
myself  as  a  good  and  loyal  citizen  of  the  United  States. 
This  I  do  in  good  faith,  with  full  determination,  pledge  and 
purpose  to  keep  this,  my  sworn  obligation,  and  without 
any  mental  reservation  or  evasion  whatsoever/ 

"III.  Provost-marshals  and  other  military  officers  are 
directed  to  report  to  these  headquarters  any  judge  of  an 
election  who  shall  refuse  his  aid  in  carrying  out  this  order, 
or  who,  on  challenge  of  a  vote  being  made  on  the  ground 
of  disloyalty  or  hostility  to  the  Government,  shall  refuse 
to  require  the  oath  of  allegiance  from  such  voter."  l 

This  was  brought  to  the  attention  of  President 
Lincoln  by  a  letter  from  Governor  Bradford,  on 
October  31,  in  which  Bradford  complained  that  the 
order  was  an  offensive  document  against  the  State, 

1  Scharf's  History  of  Maryland,  Vol.  3,  p.  561. 


232  VOTING  IN  THE  FIELD 

and  was  unnecessary,  and  asked  for  a  modification  of 
the  order  by  the  President.  To  this  Lincoln  made  a 
reply  which  is  so  characteristic  that  I  quote  it. 

"WAR  DEPARTMENT,  WASHINGTON,  November  2d,  1863. 
To  his  Excellency,  A.  W.  BRADFORD,  Governor  of  Maryland: 

"SiR  —  Yours  of  the  31st  ult.,  was  received  yesterday 
about  noon,  and  since  then  I  have  been  giving  most  earnest 
attention  to  the  subject  matter  of  it.  At  my  call  General 
Schenck  has  attended,  and  he  assures  me  it  is  almost 
certain  that  violence  will  be  used  at  some  of  the  voting 
places  on  election  day,  unless  prevented  by  his  provost- 
guards.  He  says  that  at  some  of  those  places  Union  voters 
will  not  attend  at  all  or  run  a  ticket  unless  they  have  some 
assurance  of  protection.  This  makes  the  Missouri  case  of 
my  action,  in  regard  to  which  you  express  your  approval. 

"  The  remaining  point  of  your  letter  is  a  protest  against 
any  person  offering  to  vote  being  put  to  any  test  not  found 
in  the  laws  of  Maryland.  This  brings  us  to  a  difference 
between  Missouri  and  Maryland.  With  the  same  reason 
in  both  States,  Missouri  has,  by  law,  provided  a  test  for 
the  voter  with  reference  to  the  present  rebellion,  while 
Maryland  has  not.  For  example,  General  Trimble,  cap- 
tured fighting  us  at  Gettysburg,  is,  without  recanting  his 
treason,  a  legal  voter  by  the  laws  of  Maryland.  Even 
General  Schenck's  order  admits  him  to  vote,  if  he  recants 
upon  oath.  I  think  that  is  cheap  enough.  My  order  in 
Missouri,  which  you  approve,  and  General  Schenck's  order 
here,  reach  precisely  the  same  end.  Each  assures  the  right 
of  voting  to  all  loyal  men,  and  whether  a  man  is  loyal, 
each  allows  that  man  to  fix  by  his  own  oath.  Your  sug- 
gestion that  nearly  all  the  candidates  are  loyal  I  do  not 
think  quite  meets  the  case.  In  this  struggle  for  the 
nation's  life,  I  cannot  so  confidently  rely  on  those  whose 
election  may  have  depended  upon  disloyal  votes.  Such 
men,  when  elected,  may  prove  true;  but  such  votes  are 
given  them  in  the  expectation  that  they  will  prove  false. 


MARYLAND  233 

"Nor  do  I  think  that  to  keep  the  peace  at  the  polls,  and 
to  prevent  the  persistently  disloyal  from  voting,  constitutes 
just  cause  of  offence  to  Maryland.  I  think  she  has  her 
own  example  for  it.  If  I  mistake  not,  it  is  precisely  what 
General  Dix  did  when  your  Excellency  was  elected  Gov- 
ernor. I  revoke  the  first  of  the  three  propositions  in 
General  Schenck's  General  Order  No.  53;  not  that  it  is 
wrong  in  principle,  but  because  the  military,  being,  of 
necessity,  exclusive  judges  as  to  who  shall  be  arrested,  the 
provision  is  too  liable  to  abuse.  For  the  revoked  part  I 
substitute  the  following: 

"That  all  provost-marshals  and  other  military  officers 
do  prevent  all  disturbance  and  violence  at  or  about  the 
polls,  whether  offered  by  such  persons  as  above  described, 
or  by  any  other  person  or  persons  whomsoever. 

''The  other  two  propositions  of  the  order  I  allow  to 
stand.  General  Schenck  is  fully  determined,  and  has  my 
strict  orders  besides,  that  all  loyal  men  may  vote,  and 
vote  for  whom  they  please. 

Your  obedient  servant, 

A.  LINCOLN."  1 

Thomas  Swann  had  previously  written  to  Lincoln 
that  there  was  a  suspicion  that  the  election  on 
November  4th  would  be  attended  with  undue  inter- 
ference by  the  Government,  and  requested  Lincoln's 
views  upon  the  subject,  to  which  Lincoln  replied  as 
follows : 

"EXECUTIVE  MANSION,  WASHINGTON,  D.  C.,  October  27th,  1863. 
Hon.  THOMAS  SWANN: 

"DEAR  SIR: —  Your  letter,  a  copy  of  which  is  on  the 
other  half  of  this  sheet,  is  received.  I  trust  there  is  no 
just  ground  for  the  suspicion  you  mention;  and  I  am 
somewhat  mortified  that  there  could  be  a  doubt  of  my 
views  upon  the  point  of  your  inquiry.  I  wish  all  loyal, 
qualified  voters  in  Maryland  and  elsewhere,  to  have  the 

1  Complete  Works  of  Abraham  Lincoln,  Vol.  9,  p.  196. 


234  VOTING  IN  THE  FIELD 

undisturbed  privilege  of  voting  at  elections;    and  neither 
my  authority  nor  my  name  can  be  properly  used  to  the 

Your  obedient  servant, 

A.  LINCOLN. 

Publish  both  letters  if  either. 

A.  L."1 

At  the  State  election  of  1863,  there  was  a  Union 
majority  of  46,852,  and  a  Legislature  was  elected 
which  on  February  3,  1864,  passed  an  act  calling  a 
Constitutional  Convention  on  April  27,  1864,  by  a 
vote  of  45  to  13  in  the  House  and  17  to  2  in  the 
Senate.  This  act  provided  for  submitting  the  ques- 
tion of  whether  a  Constitutional  Convention  should 
be  held  in  the  manner  provided  in  the  act,  to  the 
people.  It  contained  the  somewhat  peculiar  provision 
that  "in  case  any  military  or  armed  force  of  the 
United  States"  should  interfere  with  the  election  in 
any  election  district,  unless  it  was  called  out  by  the 
judges  or  other  civil  authority  charged  with  the 
preservation  of  the  peace,  the  judges  of  election 
should  certify  to  the  Governor  such  unwarranted 
military  interference  with  the  election,  and  the 
Governor  should  at  once  order  a  new  election  of 
delegates,  and  that  such  new  election  should  be 
ordered  from  time  to  time  as  often  as  any  military 
or  armed  interference  with  the  election  was  certified 
to  them,  but  such  new  election  should  not  delay  the 
assembling  of  the  Convention  if  it  appeared  that  a 
majority  of  all  the  votes  cast  where  no  such  military 
interference  existed,  were  in  favor  of  a  call  of  the 
Convention,  provided  at  least  sixty -five  members  were 
elected. 


1  Complete  Works  of  Abraham  Lincoln,  Vol.  9,  p.  196. 


MARYLAND  235 

The  act  also  provided  that  if  any  person  who 
offered  to  vote  was  challenged  upon  the  ground  that 
such  person  had  "served  in  the  rebel  army,  or  had 
either  directly  or  indirectly  given  aid,  comfort  or 
encouragement  to  those  in  armed  rebellion  against  the 
Government  of  the  United  States,"  the  voter  should 
be  obliged  to  make  oath  or  affirmation  to  the  con- 
trary. 

And  the  act  further  provided  that  the  members 
and  officers  of  the  Convention  should  not  only  take 
the  oath  of  allegiance  to  the  State  of  Maryland  and 
to  the  United  States  before  they  entered  upon  the 
discharge  of  their  duties,  but  should  also  take  and 
subscribe  before  the  Governor  an  oath  that  they  had 
never  "either  directly  or  indirectly,  by  word,  act  or 
deed,  given  any  aid,  comfort  or  encouragement  to 
those  in  rebellion  against  the  Government  of  the 
United  States,  and  this  I  swear  voluntarily,  without 
any  mental  reservation  or  qualification  whatever." 

All  the  voters  possible  were  brought  out  to  vote 
upon  this  question.  The  Legislature  of  Maryland  even 
passed  a  resolution  in  1864  reciting  that  many  legal 
voters  of  the  State  were  beyond  the  limits  of  the 
State  in  the  army,  and  were  not  entitled  to  enjoy  the 
elective  franchise,  therefore,  the  Secretary  of  War 
was  requested  "as  far  as  it  may  be  compatible  with 
the  public  necessity  to  grant  to  the  soldiers  of  this 
State  all  the  facilities  in  his  power  to  enable  them  to 
return  to  their  respective  places  of  voting."  1 

The  vote  on  the  question  whether  a  Convention 
should  be  called  as  provided  in  the  act,  was,  31,593 
for  the  Convention,  and  19,524  against  it,  —  a 
majority  of  12,069  for  the  Convention.  That  this 


1  Resolution,  No.  6,  Maryland  Laws,  1864,  p.  604. 


236  VOTING  IN  THE  FIELD 

was  a  fairly  conducted  election  appears  from  the  fact 
that  of  the  twenty-two  counties  in  the  State,  ten  cast 
majorities  against  the  Convention,  and  twelve  for  it. 
The  same  division  appears  in  the  vote  on  the  adoption 
of  the  Constitution,  where  thirteen  out  of  the  twenty 
two  counties  voted  against  the  Constitution. 

The  Convention  met  on  the  twenty-seventh  day  of 
April,  and  on  the  eleventh  day  of  May,  1864,  an  order 
was  adopted 

"That  the  Committee  to  consider  and  report  respect- 
ing the  Elective  Franchise,  be  instructed  to  inquire  into 
the  expediency  of  incorporating  into  the  Constitution  an 
article  extending  the  right  of  suffrage  to  soldiers,  drafted 
or  enlisted  from  this  State  into  the  service  of  the  United 
States,  and  who  may  be  out  of  this  State,  and  in  the 
service  of  the  United  States  at  the  time  of  any  election  in 
this  State,  and  that  the  Legislature  at  its  next  session 
provide  by  law  for  the  holding  of  an  election  in  the  regi- 
ments to  which  such  soldiers  may  belong,  under  such  restric- 
tions and  regulations  as  may  be  deemed  necessary  to 
guard  the  purity  of  the  ballot-box."  * 

That  portion  of  the  schedule  dealing  with  the 
soldiers'  voting  in  the  field  is  contained  in  the  report 
of  the  Committee  on  Schedule,  presented  to  the 
Convention  on  the  twenty-seventh  of  August,  1864.2 

On  September  1,  there  was  very  great  discussion 
on  the  schedule,  and  especially  upon  the  question 
whether  the  Convention  could  provide,  that  soldiers 
could  vote  in  the  field  out  of  the  State  as  the  schedule 
did  and  that  the  judges  of  elections  "should  ad- 
minister to  every  person  offering  to  vote  the  'test 
oath'  so-called,  provided  in  Section  4,  Article  I,  of 
the  new  Constitution,  which  was: 

1  Debates,  Constitutional  Convention,  1864,  Vol.  1,  p.  70. 
1  Constitutional  Convention,  Vol.  3,  pp.  1603-4. 


MARYLAND  237 

"No  person  who  has  at  any  time  been  in  armed 
hostility  to  the  United  States,  or  the  lawful  authorities 
thereof,  or  who  has  been  in  any  manner  in  the  service  of 
the  so-called  'Confederate  States  of  America;'  and  no 
person  who  has  voluntarily  left  this  State  and  gone  within 
the  military  lines  of  the  so-called  'Confederate  States  or 
armies,'  with  the  purpose  of  adhering  to  said  States  or 
armies;  and  no  person  who  has  given  any  aid,  comfort, 
countenance  or  support  to  those  engaged  in  armed  hos- 
tility to  the  United  States,  or  in  any  manner  adhered  to 
the  enemies  of  the  United  States,  either  by  contributing 
to  the  enemies  of  the  United  States,  or  unlawfully  sending 
within  the  lines  of  such  enemies  money,  or  goods,  or 
letters,  or  information;  or  who  has  disloyally  held  com- 
munication with  the  enemies  of  the  United  States;  or 
who  has  advised  any  person  to  enter  the  service  of  the 
said  enemies,  or  aided  any  person  so  to  enter;  or  who  has 
by  any  open  deed  or  word  declared  his  adhesion  to  the 
cause  of  the  enemies  of  the  United  States,  or  his  desire  for 
the  triumph  of  the  said  enemies  over  the  arms  of  the 
United  States,  shall  ever  be  entitled  to  vote  at  any  election 
to  be  held  in  this  State,  or  to  hold  any  office  of  honor, 
profit  or  trust  under  the  laws  of  this  State,  unless,  since 
such  unlawful  acts,  he  shall  have  voluntarily  entered  into 
the  military  service  of  the  United  States,  and  been  honor- 
ably discharged  therefrom,  or  shall  be,  on  the  day  of 
election,  actually  and  voluntarily  in  such  service,  or  unless 
he  shall  be  restored  to  his  full  rights  of  citizenship  by  an 
Act  of  the  General  Assembly,  passed  by  a  vote  of  two- 
thirds  of  all  the  members  elected  to  each  House;  and  it 
shall  be  the  duty  of  all  officers  of  registration  and  judges 
of  election  carefully  to  exclude  from  voting,  or  being 
registered,  all  persons  so  as  above  disqualified;  and  the 
Judges  of  election,  at  the  first  election  held  under  the 
Constitution,  shall,  and  at  any  subsequent  election  may 
administer  to  any  person  offering  to  vote,  the  following 
oath  or  affirmation: 


238  VOTING  IN  THE  FIELD 

"  '  I  do  swear  or  affirm  that  I  am  a  citizen  of  the  United  States, 
that  I  have  never  given  any  aid,  countenance  or  support  to  those 
in  armed  hostility  to  the  United  States,  that  I  have  never  expressed 
a  desire  for  the  triumph  of  said  enemies  over  the  arms  of  the 
United  States,  and  that  I  will  bear  true  faith  and  allegiance  to 
the  United  States,  and  support  the  Constitution  and  laws  thereof 
as  the  supreme  law  of  the  land,  any  law  or  ordinance  of  any  State 
to  the  contrary  notwithstanding;  that  I  will  in  all  respects  demean 
myself  as  a  loyal  citizen  of  the  United  States,  and  I  make  this 
oath  or  affirmation  without  any  reservation  or  evasion,  and  believe 
it  to  be  binding  on  me. 

"And  any  person  declining  to  take  such  oath  shall  not 
be  allowed  to  vote;  but  the  taking  of  such  oath  shall 
not  be  deemed  conclusive  evidence  of  the  right  of  such 
person  to  vote;  and  any  person  swearing  or  affirming 
falsely  shall  be  liable  to  the  penalties  of  perjury;  and  it 
shall  be  the  duty  of  the  proper  officers  of  registration  to 
allow  no  person  to  be  registered  until  he  shall  have  taken 
the  oath  or  affirmation  above  set  out;  and  it  shall  be  the 
duty  of  the  judges  of  election  in  all  their  returns  of  the 
first  election  held  under  this  Constitution  to  state,  in  their 
said  returns,  that  every  person  who  has  voted  has  taken 
such  oath  or  affirmation.  But  the  provisions  of  this 
section  in  relation  to  acts  against  the  United  States  shall 
not  apply  to  any  person  not  a  citizen  of  the  United  States 
who  shall  have  committed  such  acts  while  in  the  service 
of  some  foreign  country  at  war  against  the  United  States, 
and  who  has,  since  such  acts,  been  naturalized,  or  may  be 
naturalized,  under  the  laws  of  the  United  States;  and  the 
oath  above  set  forth  shall  be  taken  in  the  case  of  such 
persons  in  such  sense." 

Section  7  prescribed  an  oath  to  those  elected  or 
appointed  to  office  the  same  as  that  contained  in 
Section  4  down  to  "contrary  notwithstanding,"  with 
the  following  clauses  added: 

"That  I  have  never  directly  or  indirectly,  by  word, 
act  or  deed,  given  any  aid,  comfort  or  encouragement  to 
those  in  rebellion  against  the  United  States  or  the  lawful 
authorities  thereof,  but  that  I  have  been  truly  and  loyally 


MARYLAND  239 

on  the  side  of  the  United  States  against  those  in  armed 
rebellion  against  the  United  States;  and  I  do  further 
swear  or  affirm  that  I  will  to  the  best  of  my  abilities  defend 
the  Union  of  the  United  States  and  not  allow  the  same  to 
be  broken  up  and  dissolved,  or  the  government  thereof  to 
be  destroyed,  under  any  circumstances,  if  in  my  power 
to  prevent  it;  and  that  I  will  at  all  times  discountenance 
and  oppose  all  political  combinations  having  for  their  object 
such  dissolution  or  destruction."  1 

The  provision  for  soldiers'  voting  in  the  field  was  in 
Sections  11  to  17  of  the  Statute  of  the  New  Constitution 
as  follows: 

Sec.  11.  Any  qualified  voter  of  this  State,  who  shall 
be  absent  from  the  county  or  city  of  his  residence  by 
reason  of  being  in  the  military  service  of  the  United  States 
so  as  not  to  be  able  to  vote  at  home,  on  the  adoption,  or 
rejection  of  this  Constitution,  or  for  all  State  officers 
elected  on  general  ticket,  and  for  Presidential  electors,  and 
for  Members  of  Congress,  at  the  election  to  be  held  on 
the  Tuesday  next  after  the  first  Monday  in  the  month  of 
November,  eighteen  hundred  and  sixty-four,  shall  be 
entitled  to  vote  at  such  elections  as  follows:  A  poll  shall 
be  opened  in  each  Company  of  every  Maryland  Regiment 
in  the  service  of  the  United  States,  or  of  this  State,  on 
the  day  appointed  by  this  Convention  for  taking  the  vote 
on  the  new  Constitution,  or  on  some  day  not  more  than 
five  days  thereafter  at  the  quarters  of  the  commanding 
officer  thereof,  and  voters  of  this  State  belonging  to  such 
Company  who  shall  be  within  ten  miles  of  such  quarters 
on  the  day  of  election,  may  vote  at  such  poll;  the  polls 
shall  be  opened  at  eight  o'clock,  A.M.,  and  close  at  six 
o'clock,  P.M.;  the  commissioned  officers  of  such  Company, 
or  such  of  them  as  are  present  at  the  opening  of  the  polls 
shall  act  as  Judges,  and  any  one  officer  shall  be  competent 
so  to  act,  and  if  no  officer  be  present,  then  the  voters  in 
such  Company  present,  shall  elect  two  of  the  voters 


Constitutional  Convention,  1864,  Vol.  3,  p.  1882. 


240  VOTING  IN  THE  FIELD 

present  to  act  as  Judges  of  the  election;  before  any  votes 
are  received,  each  of  the  Judges  shall  take  an  oath,  or 
affirmation,  that  he  will  perform  the  duties  of  Judge 
according  to  law,  will  prevent  fraud  and  observe  and  make 
proper  return  thereof,  and  such  oath  the  Judges  may 
administer  to  each  other;  the  election  shall  be  by  ballot, 
and  any  voter  may  vote  either  "for  the  Constitution,"  or 
"against  the  Constitution." 

Sec.  12.  Any  qualified  voter  of  this  State  who  shall  be 
absent  from  the  city,  or  county  of  his  residence  on  the  day 
for  taking  the  vote  on  the  adoption  or  rejection  of  this 
Constitution  by  reason  of  his  being  in  the  military  service 
of  the  United  States,  but  shall  be  at  some  hospital,  or 
military  post,  or  on  duty  within  this  State,  and  not  with 
his  Company,  may  vote  at  the  nearest  polls  to  such  place 
on  satisfying  the  Judges  that  he  is  a  legal  and  qualified 
voter  of  this  State. 

Sec.  13.  The  Judges  may  swear  any  one  offering  to 
vote  as  to  his  being  a  legal  voter  of  this  State.  The 
Judges  shall  take  down  on  a  poll  book,  or  list,  the  names 
of  all  the  voters  as  their  votes  are  taken,  and  the  tickets 
shall  be  placed  in  a  box  as  taken;  after  the  polls  are 
closed,  the  tickets  shall  be  counted  and  strung  on  a  thread, 
and  the  Judges  shall  make  out  a  certificate,  which  they 
shall  sign,  addressed  to  the  Governor  at  Annapolis,  in 
which  they  shall  state  that  they  have  taken  the  oath 
hereby  prescribed,  and  shall  certify  the  number  of  votes 
taken,  and  the  number  of  votes  for  the  Constitution,  and 
against  the  Constitution;  the  said  certificates  shall  be 
accompanied  with  the  names  of  the  voters,  and  shall  be 
plainly  expressed,  but  no  particular  words  shall  be  required. 

Sec.  14.  The  Judges  shall,  as  soon  as  possible,  transmit 
said  returns  with  the  tickets  so  strung,  to  the  Governor, 
who  shall  receive  the  returns  of  the  soldiers'  vote,  and 
shall  cast  up  the  same,  and  judge  of  the  genuineness  and 
correctness  of  the  returns,  and  may  re-count  the  threaded 
tickets,  so  as  to  satisfy  himself,  and  the  Governor  shall 


MARYLAND  241 

count  said  vote  with  the  aggregate  vote  of  the  State  on 
the  adoption  or  rejection  of  this  Constitution,  and  shall 
wait  for  fifteen  days  after  the  day  on  which  the  State  vote 
is  taken,  so  as  to  allow  the  returns  of  the  soldiers'  vote 
to  be  made  before  the  result  of  the  whole  vote  is  an- 
nounced. The  Governor  shall  receive  the  returns  of  the 
soldiers'  vote  on  said  election  for  State  officers,  Presidential 
electors  and  members  of  Congress,  and  shall  count  the 
same  with  the  aggregate  home  vote  on  State  officers,  and 
the  aggregate  home  vote  in  each  district  respectively,  for 
members  of  Congress. 

Sec.  15.  The  Governor  shall  make  known  to  the 
officers  of  the  State  Regiments,  the  provisions  of  this 
article  of  the  Schedule,  and  request  them  to  exercise  the 
right  hereby  conferred  upon  them,  and  shall  take  all  means 
proper  to  secure  the  soldiers'  vote;  and  the  General 
Assembly,  at  its  first  session  after  the  adoption  of  this 
Constitution,  shall  make  proper  appropriation  to  pay  any 
expense  that  may  arise  herein. 

Sec.  16.  If  this  Constitution  shall  be  adopted  by  the 
people,  the  provisions  contained  herein  for  taking  the 
soldiers'  vote  on  the  adoption  of  the  Constitution  shall 
apply  to  all  elections  to  be  held  in  this  State,  until  the 
General  Assembly  shall  provide  some  other  mode  of  taking 
the  same." 

It  was  strenuously  claimed  that  the  Convention 
could  not  require  any  test  oath,  or  any  other  quali- 
fication for  voting  which  might  exclude  persons  who 
would  otherwise  be  qualified  to  vote,  and  incidentally 
that  the  Convention  could  not  widen  the  constituency 
who  were  to  vote  on  the  acceptance  of  the  Constitution 
by  admitting  persons  who  were  not  entitled  to  vote 
under  the  old  Constitution,  which  of  course  excluded 
soldiers  who  were  allowed  to  vote  in  the  field.  On 
the  other  hand,  it  was  claimed  that  the  Convention 
could  submit  its  work  in  the  form  of  a  new  Constitu- 


242  VOTING  IN  THE  FIELD 

tion  to  such  voters  as  it  pleased  to  define  in  that 
Constitution;  and  it  was  also  claimed  that  the 
persons  to  whom  the  soldiers'  voting  provision  in  the 
Constitution  extended,  were  already  voters  who  could 
probably  be  authorized  to  vote  under  the  old  Consti- 
tution, and  therefore  the  Convention  did  nothing  in 
that  respect  which  the  Legislature  could  not  have 
done.1 

Finally  a  motion  was  made  to  strike  out  the 
provision  from  the  schedule  authorizing  soldiers  to 
vote  in  the  field,  and  an  earnest  speech  was  made 
against  that  provision  by  the  Democratic  leader  Mr. 
Belt,  in  which  he  said: 

"The  real  objection  which  obtains  to  soldiers'  voting  in 
camp  is  not  that  anybody  wants  to  deprive  them  of  a  fair 
right  to  vote  under  the  same  conditions  under  which 
civilians  vote.  If  they  can  procure  furloughs,  or  be 
detached  and  come  home  and  vote,  as  they  have  done 
heretofore,  under  the  same  conditions  that  civilians  vote, 
there  would  be  no  objection  on  earth  to  it.  But  the 
objection  arises  from  the  circumstance  that  it  is  proposed 
that  these  people  shall  vote  nobody  knows  where,  no 
matter  how  many  hundreds  of  miles  away  from  the  place 
where  the  election  is  conducted.  It  is  the  total  abnega- 
tion of  all  protection  against  fraud.  Nobody  can  guarantee 
a  fair  election  under  these  circumstances.  And  another 
strong  and  conclusive  objection  against  the  policy  proposed 
to  be  inaugurated  is  that  it  is  to  be  conducted  by  persons 
who  are  not  officers  of  the  law,  and  therefore  a  discrimina- 
tion is  made  between  one  part  of  our  people  who  are  in 
the  State,  and  those  who  happen  to  be  in  the  military 
service,  in  favor  of  those  who  are  in  that  service.  I  am 
opposed  to  a  policy  which  gives  to  men,  because  they 
happen  to  be  in  the  army  and  out  of  the  State,  who  are 


1  Constitutional  Convention,  Vol.  3,  pp.  1742-45. 


MARYLAND  243 

in  the  service  which  they  have  chosen  with  all  the  known 
disabilities  of  it,  an  immense  advantage  of  this  sort  over 
our  whole  civil  population.  It  is  upon  this  ground,  and 
this  only,  that  I  am  opposed  to  this  system." 

This  was  in  fact  only  to  say,  —  I  am  opposed  to 
the  section  because  it  allows  soldiers  to  vote  in  the 
field.  Of  course,  they  could  vote  if  they  came  home, 
and  it  was  only  because  they  could  not  come  home 
that  the  section  was  necessary. 

There  was  then  a  motion  to  change  the  word 
"may"  to  "shall,"  so  that  the  soldiers'  voting 
schedule  should  provide  that  the  judges  shall  swear 
those  offering  to  vote,  etc.  This  was  debated  and 
rejected.  There  were  then  some  minor  amendments 
proposed,  which  were  all  voted  down,  and  finally  the 
words  "otherwise  provided  for"  changed  to  "provide 
some  other  mode  of  taking  the  same,"  so  that  the 
provision  inserted  in  the  Convention  schedule  should 
stand  as  authorizing  soldiers'  voting,  until  the  Legis- 
lature should  provide  some  other  mode  for  voting.1 

Finally  the  provision  for  soldiers'  voting  with  this 
change  was  adopted. 

The  Constitution  was  adopted  as  a  whole  by  a 
vote  of  53  yeas  to  26  nays.  It  provided  for  the 
abolition  of  slavery,  for  soldiers'  voting  in  the  field, 
for  an  oath  of  paramount  allegiance  to  the  United 
States,  and  for  various  other  important  changes  in 
the  old  Constitution.  The  minority  of  the  Conven- 
tion, who  had  voted  against  the  Constitution,  signed 
and  distributed  to  the  people  before  the  Constitution 
was  voted  upon,  a  protest  against  its  adoption,  in 
which  they  objected  most  strenuously  to  the  abolition 
of  slavery,  and  also  to  the  test  oaths  imposed  by  the 


1  Constitutional  Convention,  Vol.  3,  pp.  1760-63. 


244  VOTING  IN  THE  FIELD 

Constitution,  and  to  the  fact  that  "soldiers  in  the 
field  and  out  of  the  State  are  to  be  allowed  to  vote 
on  its  adoption."  They  also  printed  and  circulated 
the  opinions  of  Reverdy  Johnson,  then  a  Senator  of 
the  United  States,  Thomas  S.  Alexander,  and  Brigham 
Schley,  three  eminent  constitutional  lawyers,  to  the 
effect  that  the  Convention  had  no  authority  "to  re- 
ceive the  soldiers'  vote  outside  of  the  State  on  the 
question  of  the  adoption  or  rejection  of  the  new 
Constitution."  l 

The  Constitution  provided  that  "for  the  purpose 
of  ascertaining  the  sense  of  the  people  of  this  State 
in  regard  to  the  adoption  or  rejection  of  this  Con- 
stitution, the  Governor  shall  issue  his  proclamation 
within  five  days  after  the  adjournment  of  this  Con- 
vention" for  an  election  in  the  City  of  Baltimore  on 
the  twelfth  of  October,  and  in  the  several  counties 
on  the  twelfth  and  thirteenth  days  of  October,  "at 
which  election  the  vote  shall  be  by  ballot,  and  each 
ballot  shall  inscribe  thereon  the  words  "for  the 
Constitution"  or  "against  the  Constitution."  On 
September  9,  Governor  Bradford  issued  the  proclama- 
tion which  the  Constitution  required,  and  the  election 
was  held  on  the  twelfth  and  thirteenth  of  October. 

After  the  issuing  of  the  Governor's  proclamation 
there  was  strenuous  opposition  upon  the  ground  that 
the  question  of  adopting  the  Constitution  was  sub- 
mitted to  persons  who  were  not  by  the  Constitution 
of  1851  authorized  to  vote  upon  the  new  Constitution, 
and  correspondence  passed  between  Mr.  Vickers,  a 
distinguished  lawyer,  and  Governor  Bradford  on  that 
subject  on  September  14,  19  and  October  3.  Mr. 
Vickers  objected  that  the  Constitution  authorized 


1  Scharf  s  History,  Vol.  3,  pp.  590  et  seq. 


MARYLAND  245 

persons  to  vote  upon  its  acceptance  who  could  not 
have  voted  but  for  that  authorization  in  the  Con- 
stitution, to  wit,  soldiers  out  of  the  State  in  the  field. 
The  Governor  replied  that  the  act  calling  the  Con- 
vention provided  that  the  Convention  could  in 
providing  for  submitting  the  Constitution  to  vote, 
declare  that  it  should  be  submitted  "at  such  time,  in 
such  manner,  and  subject  to  such  rules  and  regulations 
as  the  said  Convention  may  prescribe";  and  that  it 
was  not  necessary  for  the  Legislature  to  submit  the 
Constitution  to  the  people  at  all,  and  therefore  they 
could  place  such  regulations  upon  the  voting  for  it  as 
they  saw  fit.  He  also  called  attention  to  the  fact 
that  the  Constitution  of  1776  provided  a  method  for 
its  amendment,  and  yet  the  Constitution  of  1851 
was  not  amended  or  revised  in  the  manner  thus 
limited  and  prescribed,  but  was  the  work  of  a  Con- 
vention, and  its  validity  was  maintained  upon  the 
ground  of  the  paramount  authority  of  the  people  on 
the  subject,  and  the  plenary  powers  possessed  by  such 
a  Convention. 

To  this  Mr.  Vickers  replied  in  a  very  elaborate 
letter  in  which  he  said  that  the  acts  of  the  Convention 
in  respect  to  a  test  oath  and  to  the  soldiers  voting 
out  of  the  State,  were  clearly  unconstitutional,  and 
that  the  wrong  thus  done  could  be  remedied  only  by 
the  Governor  in  refusing  to  order  an  election  under 
the  Constitution,  or  to  count  votes  under  the  Con- 
stitution. 

To  this  letter  the  Governor  replied  at  great 
length,  and  referred  to  the  action  of  the  Constitutional 
Convention  of  Virginia  in  1829,  when  they  adopted  a 
new  Constitution  which  was  to  become  operative  only 
when  ratified  by  a  popular  vote. 

Under    the    old    Constitution    of    Virginia    which 


246  VOTING  IN  THE  FIELD 

existed  until  the  new  one  was  ratified,  nobody  but 
freeholders  were  qualified  to  vote,  and  they  alone 
had  elected  that  Convention,  and  it  was  claimed  that 
they  alone  could  vote  upon  the  ratification  of  a  new 
Constitution.  But  the  Convention  in  submitting  the 
new  Constitution  to  the  people  allowed  large  classes 
to  vote,  such  as  owners  of  leasehold  estates,  house- 
holders who  paid  a  tax,  and  many  others  who  had 
never  before  exercised  the  right  of  suffrage.  They 
did  vote,  and  by  their  votes  the  Constitution  was 
carried.  The  issue  was  plainly  made  in  the  Virginia 
Convention.  Mr.  Randolph  offered  a  resolution  that 
the  "amended  Constitution  adopted  by  this  Con- 
vention be  submitted  on  the  respective  election  days 
in  the  month  of  April  next  to  the  persons  qualified 
to  vote  under  the  existing  Constitution  for  members 
of  the  General  Assembly."  The  yeas  and  nays  were 
taken  upon  this  resolution,  and  it  was  defeated  by  a 
vote  of  more  than  two  to  one.  Among  those  who 
voted  with  the  majority  were  ex-President  Madison, 
Chief  Justice  Marshall,  and  others  of  scarcely  inferior 
reputation.1 

The  result  of  the  election  was  that  30,174  votes 
were  cast  for  the  Constitution,  and  29,799  votes 
against  it,  making  a  majority  of  375  for  the  Con- 
stitution. But  in  these  votes  were  2633  votes  cast 
by  soldiers  in  the  field  out  of  the  State  for  the  Con- 
stitution, and  263  cast  by  soldiers  in  the  field  against 
the  Constitution,  so  that  if  all  these  soldiers'  votes 
were  excluded,  the  vote  would  stand  27,541  for  the 
Constitution,  29,536  against  it.  The  question  of 
the  validity  of  the  soldiers'  vote,  therefore,  became 
important  and  crucial.  Lincoln  realized  the  impor- 

1  Debates  in  the  Constitutional  Convention  of  Maryland,  1864,  Appendix, 
pp.  1909,  1914. 


MARYLAND  247 

tance  of  the  soldiers'  vote  in  Maryland  and  watched 
it  with  the  keen  eye  of  an  old  campaigner.  Novem- 
ber 10,  1864,  he  telegraphed  to  H.  W.  Hoffman  of 
Baltimore  that  "The  Maryland  soldiers  in  the  Army 
of  the  Potomac  cast  a  total  vote  of  1,428,  out  of  which 
we  get  1,160  majority.  This  is  directly  from  Gen. 
Meade  and  Gen.  Grant."  l  The  opponents  of  the 
Constitution,  on  October  24,  applied  to  the  Superior 
Court  to  issue  a  mandamus  to  the  Governor  "com- 
manding him  to  exclude  all  votes  cast  at  any  place 
outside  of  the  State  of  Maryland  from  the  count  upon 
the  question  of  the  adoption  of  the  Constitution." 
This  petition  was  dismissed  by  the  Court.  An 
appeal  was  taken  to  the  Court  of  Appeals,  where  it 
was  also  dismissed,  and  from  the  order  of  dismissal 
an  appeal  was  also  taken.  Pending  these  proceedings 
a  petition  was  presented  to  the  Circuit  Court  in  behalf 
of  E.  F.  Chambers  and  others  (E.  F.  Chambers  was 
a  leading  member  of  the  Convention  who  had  per- 
sistently voted  against  the  main  provisions  of  the 
Constitution),  asking  for  an  injunction  to  restrain  the 
Governor  from  counting  the  votes  cast  on  the  question 
of  the  adoption  of  the  Constitution  outside  of  the 
State  of  Maryland,  and  from  issuing  his  proclamation 
declaring  the  Constitution  to  be  adopted.  This 
petition  was  dismissed  and  an  appeal  taken  to  the 
Court  of  Appeals.  The  same  petition  in  behalf  of 
the  same  complainants  was  then  presented  to  the 
Circuit  Court  of  another  county,  and  dismissed  in 
like  manner.  From  this  decision  and  the  order 
dismissing  the  petition  there  was  another  appeal. 
These  four  appeals  came  up  for  hearing  on  the 
twenty-seventh  of  October  in  the  Court  of  Appeals. 


1  Complete  Works  of  Abraham  Lincoln,  Vol.  10,  p.  263. 


248  VOTING  IN  THE  FIELD 

The  Governor  declined  to  appear  and  the  case  was 
argued  by  eminent  counsel,  and  on  the  twenty- 
ninth  of  October  the  Court  unanimously  affirmed  the 
order  of  the  Court  below. 

They  said  that  the  counting  the  votes  and  the 
proclaiming  the  Constitution  were  by  the  organic 
law  of  the  State  to  be  performed  by  the  Governor, 
and  that  his  duties  could  not  be  controlled  by  the 
Courts.1 

While  these  proceedings  were  in  progress,  an 
application  was  made  to  the  Governor  for  permission 
to  canvass  the  returns  made  to  him  of  the  soldiers' 
votes,  and  show  cause  why  certain  of  these  should 
be  rejected  in  the  count.  This  privilege  was  given 
by  the  Governor,  and  the  votes  and  returns  were 
canvassed  in  detail,  and  arguments  were  made  against 
accepting  them  by  the  same  counsel  who  had  argued 
in  the  Supreme  Court. 

October  28,  1864,  the  Governor  gave  an  opinion 
in  which  he  said  two  or  three  days  had  been  devoted 
to  the  examination  and  the  argument,  and  that  many 
claims  had  been  made  which  he  could  not  consider, 
being  bound  by  the  terms  of  the  Constitution.  One 
claim  was  that  twenty-three  votes  should  be  rejected 
because  they  were  not  written  or  printed  on  white 
paper,  as  required  by  the  act  calling  the  Convention. 
This  seemed  "rather  a  tenuous  exception,"  the 
Governor  said;  "the  paper  on  which  these  votes  were 
written  was  what  is  called  'blue  laid,'  quite  as 
common  as  what  is  called  'white  laid,'  and  I  can 
scarcely  think  it  comes  within  the  objection.  But 
if  it  does,  the  law  puts  upon  the  Judge  the  duty  of 
rejecting  them,  and  I  have  no  greater  power  to  reject 


1  Constitutional  Convention,  Appendix,  1864,  p.  119,  et  seq. 


MARYLAND  249 

them  than  I  have  to  reject  any  other  illegal  ballot 
which  they  had  received." 

There  were  sundry  objections  made  which  the 
Governor  sustained  and  deducted  the  votes.  In 
conclusion  he  said:  "The  sum  of  the  votes  so  de- 
ducted for  reasons  apparent  on  the  face  of  the  return, 
amounts  to  285  votes  for  and  five  against  the  Con- 
stitution, and  leaves  the  number  of  the  count  of  the 
soldiers'  vote  2,633  for  and  263  against  the  Constitu- 
tion; the  aggregate  of  the  home  and  soldiers'  vote 
then  being  30,174  for  and  29,799  against  the  Con- 
stitution," being  a  majority  of  375  for  the 
Constitution. 

In  concluding  his  opinion  the  Governor  said:  "I 
am  gratified  that  these  returns  of  the  soldiers'  vote 
have  passed  under  the  searching  scrutiny  of  the  able 
counsel  who  have  inspected  them.  I  think  the  cir- 
cumstances obviously  show  a  purpose  on  the  part  of 
the  soldiers  to  abide  strictly  by  the  law,  and  avail 
themselves  of  no  privileges  except  what  the  law 
allows." 

And  finally  on  October  29,  1864,  Governor  Brad- 
ford issued  his  proclamation  declaring  that  the  Con- 
stitution had  been  adopted  by  the  people,  and  that 
it  took  effect  on  the  first  day  of  November,  1864.1 

At  the  November  election,  1864,  the  whole  vote 
of  the  State  was  72,892,  of  which  McClellan  received 
32,739,  and  Lincoln  40,153,  or  a  majority  of  7,414. 

A  new  Constitution  was  adopted  in  Maryland  and 
ratified  by  the  people  on  the  eighteenth  of  September, 
1867,  in  which  all  the  provisions  of  the  Constitution 
of  1864  with  regard  to  a  test  oath  of  loyalty,  and  all 
provisions  for  soldiers  voting  were  omitted. 


Constitutional  Convention,  1864,  Appendix,  p.  1904. 


CHAPTER  XXIV 

ILLINOIS 

IN  1860  Illinois  gave  Lincoln  a  majority  of  4,629, 
in  a  total  vote  of  339,693  and  elected  a  Repub- 
lican Governor  for  a  term  of  four  years.  In  1861 
there  was  a  large  Democratic  majority  for  delegates 
to  a  constitutional  convention,  and  in  1862  the 
Legislature  of  1863  was  chosen  and  had  a  Demo- 
cratic majority  of  28  in  a  House  of  80  members, 
and  of  three  in  a  senate  of  25. l 

Nineteen  twentieths  of  the  population,  when  Illi- 
nois was  admitted  into  the  Union,  were  Americans, 
and,  with  the  exception  of  some  from  Pennsyl- 
vania, almost  wholly  from  the  Southern  States. 
Except  in  the  northern  part,  it  was  in  reality  anxious 
for  slavery,  but  under  the  Ordinance  of  1787,  slavery 
could  not  be  established  within  the  territory  of 
Illinois.  They  evaded  this  provision,  however,  by 
"black  laws,"  which  provided  for  indentured  and 
registered  servants,  and  for  the  sale  of  indentures, 
so  that  practically  the  persons  indentured  were 
slaves.  In  1824,  there  was  an  attempt  to  adopt  a 
Constitution  permitting  slavery,  and  a  most  violent 
canvass  of  the  people.  The  result  was  that  the 
scheme  was  defeated  by  only  about  1800  majority.2 
It  was  not  until  the  Constitution  of  1848  that  slavery 
was  entirely  eradicated  from  Illinois,  and  in  that 
there  was  a  clause  prohibiting  negro  immigration,. 


1  History  of  Illinois,  Davidson  and  Stuve,  pp.  302,  319,  327. 

2  Negro  Servitude  in  Illinois,  Harris,  1904. 


ILLINOIS  251 

for     which     the    vote    was    49,066    and    against    it 
20,884. 

The  Illinois  Constitution  provided  that  a  qualified 
elector  should  not  "be  entitled  to  vote  except  in 
the  district  or  county  in  which  he  shall  actually 
reside  at  the  time  of  such  election."  l 

There  would  seem  to  be  no  reasonable  difference 
between  this  provision  and  that  in  the  Constitution 
of  the  State  of  New  York.  In  New  York  the  Consti- 
tution had  the  provision  that  the  elector  should  not 
vote  elsewhere,  but  when  a  Constitution  specifically 
provides  that  a  thing  shall  be  done  in  a  particu- 
lar place,  it  necessarily  prohibits  its  being  done 
anywhere  else. 

There  was,  however,  a  Constitutional  Convention 
called  by  an  act  of  the  General  Assembly  of  Illinois, 
passed  January  31,  1861,  "to  amend  the  Constitu- 
tion of  the  State  of  Illinois,"  and  which  met  on  the 
seventh  day  of  January,  1862.  That  Convention 
prepared  an  amended  Constitution  \vhich  was  sub- 
mitted to  the  people  in  June,  1862.  One  of  the  things 
which  they  considered  was  whether  they  should  abolish 
the  system  of  voting  by  ballot,  and  return  to  the 
system  of  viva  voce  voting.2  The  subject  of  soldiers' 
voting  in  the  field  w^as  also  before  the  Convention. 

On  February  5,  the  Convention  passed  a  resolu- 
tion "that  some  provision  ought  to  be  made  whereby 
all  the  legal  voters  of  this  State,  in  the  volunteer 
service  of  the  United  States,  beyond  the  limits  of 
the  State  of  Illinois,  shall  be  secured  in  the  right 
to  cast  their  votes  at  the  election  to  be  held  for  the 
ratification  or  rejection  of  the  Constitution,  and  at 
all  elections  for  State  officers  in  this  State  during  the 

1  Article  6,  Illinois  Constitution,  1818. 

2  Constitutional  Convention  Journal,  1862,  p.  72. 


252  VOTING  IN  THE  FIELD 

term  of  such  volunteer  service."  l  A  majority  of  the 
Committee  of  the  Convention  on  the  schedule  sub- 
mitted a  report,  which  provided  that  the  Constitu- 
tion should  not  be  submitted  to  soldiers  in  the  field, 
but  only  to  the  "qualified  electors  in  the  counties 
where  they  resided,  at  the  usual  place  of  voting,  and 
not  elsewhere,  unless  otherwise  provided."  2  This 
would,  perhaps,  have  left  it  to  the  Legislature  to  pro- 
vide for  soldiers  voting  in  the  field,  if  the  Consti- 
tution was  adopted.  A  minority  of  the  Committee 
reported  a  provision  that  an  election  should  be  had 
in  the  various  camps  or  regiments  of  the  soldiers, 
whether  within  or  without  the  State,  to  enable  them 
to  vote  on  the  adoption  or  rejection  of  the  Constitu- 
tion; that  the  officers  of  the  regiment  should  act  as 
judges  of  the  election,  appoint  clerks,  open  the  polls 
and  when  the  polls  were  closed  should  certify  the 
result  of  the  election  to  the  Secretary  of  State.  And 
at  the  end  of  this  report  it  was  provided  that  "in 
the  event  of  the  adoption  of  this  Constitution,  the 
same  provision  shall  be  extended  to  the  first  election 
of  State  officers  held  under  the  same."  3 

This  provision,  if  adopted,  would  have  given  the 
soldiers  the  right  to  vote  on  the  Constitution  in  the 
elections  held  by  their  officers,  and  also,  in  case 
the  Constitution  was  adopted,  would  have  given  them 
the  right  to  vote  for  State  officers  at  the  first  elec- 
tion held  under  the  Constitution,  and  not  thereafter. 
However,  a  provision  was  adopted  and  made  a  part 
of  the  schedule  of  the  Convention,  which  provided 
that  the  President  of  the  Convention  should  appoint 
three  Commissioners  who  should  visit  the  various 
camps,  barracks,  hospitals,  etc.,  for  the  receiving  of 

1  Constitutional  Convention  Journal,  1862,  p.  266. 

2  Ibid.,  p.  958.  »  Ibid.,  p.  963. 


ILLINOIS  253 

votes  of  volunteers;  that  the  Commissioners  should 
prepare  suitable  poll  books;  and  that  they  should 
make  lists  of  the  votes  received;  and  that  when  the 
polls  were  closed  the  Commissioners  should  canvass 
the  votes,  make  duplicate  copies  of  the  returns  of 
the  election,  and  one  of  them  should  be  kept  by  one 
of  the  judges  and  the  other  forwarded  "in  some  safe 
and  convenient  way"  to  the  President  of  the  Conven- 
tion and  to  the  Secretary  of  State  to  be  canvassed.1 

This  provision  only  authorized  soldiers  to  vote 
upon  the  adoption  or  rejection  of  the  Constitution, 
and  the  Constitution  itself  provided,  as  did  the  exist- 
ing Constitution,  that  a  qualified  voter  should  "vote 
only  in  the  election  district  where  he  resides."  2 

The  Constitution  was  rejected,  there  being  151,- 
264  against  it,  and  126,739  for  it.  The  soldiers'  vote 
was  taken  upon  the  Constitution,  and  10,151  voted 
against  it,  and  1,687  for  it.  This  vote  is  probably 
included  in  the  vote  given  above  for  and  against 
the  Constitution.  As  the  Constitution  had  author- 
ized soldiers  to  vote  in  the  field  upon  its  adoption  or 
rejection,  Governor  Yates  considered  that  the  Legis- 
lature could  do  the  same  thing,  and  he  called  the 
attention  of  the  Legislature  at  the  beginning  of  the 
January  Session  of  1863  to  the  importance  of  an 
enactment  making  provision  for  taking  the  votes  of 
the  volunteers  of  the  State  in  actual  service.  He 
said: 

"I  desire  to  call  especial  attention  to  the  importance 
of  an  enactment,  making  provision  for  taking  the  votes 
of  the  volunteers  of  the  State  in  actual  service.  The 
fact  that  a  man  is  fighting  to  sustain  his  country's  flag 


1  Const.  Convention  Journal,  1862,  pp.  1021,  1112. 

2  Ibid.,  p.  1092. 


254  VOTING  IN  THE  FIELD 

should  not  deprive  him  of  the  highest  privilege  of  citizen- 
ship, viz.:  the  right  to  take  a  part  in  the  selection  of  his 
rulers.  The  soldier  should  be  allowed  a  voice  in  the 
Nation  for  the  existence  of  which  he  is  placing  his  life  in 
peril.  The  reason  which  has  excluded  the  soldier  in  the 
regular  army  does  not  apply  to  the  soldier  in  the  volun- 
teer service.  The  regular  loses  his  State  identity,  and, 
to  a  certain  extent,  local  citizenship.  The  volunteer,  on 
the  other  hand,  does  not.  He  still  continues  to  be  a  son  of 
Illinois,  fighting  under  his  State  flag  as  well  as  the  stars 
and  stripes.  A  force  of  one  hundred  and  thirty-five 
thousand  volunteered  to  the  field  from  our  State.  Of 
this  number  it  is  safe  to  say  one  hundred  thousand  are 
voters,  and  if  they  were  not  legally  voters  previously  to 
enlistment,  that  act  ought  certainly  to  make  them  so. 
No  man  more  justly  owns  the  right  of  citizenship  than 
he  who  voluntarily  takes  up  arms  in  defense  of  his  coun- 
try and  its  dearest  rights.  These  men  have  as  deep  an 
interest  in  the  selection  of  the  representatives  who  are, 
to  a  great  extent,  to  control  and  direct  the  destinies  of 
the  country,  as  any  other  class  of  persons.  The  Secre- 
tary of  War  most  justly  decided  that  he  who  votes  must 
bear  arms.  Shall  not  the  Legislatures  of  the  different 
States  respond  by  saying:  'And  who  bears  arms  must 
vote?'  I  see  nothing  in  our  Constitution  which  prohibits 
the  enactment  of  such  a  law.  On  the  contrary,  Section 
5,  of  Article  III,  of  that  instrument,  provides  that  *  no 
elector  shall  be  deemed  to  have  lost  his  residence  in  this 
State  by  reason  of  his  absence  on  business  of  the  United 
States  or  of  this  State.'  Justice  demands  that  this  pro- 
vision should  be  carried  out  in  its  letter  and  spirit.  Past 
legislatures,  not  anticipating  the  present  anomalous  con- 
dition of  national  affairs,  passed  no  enactment  by  which 
it  can  be  legally  carried  into  effect.  A  law  can  be  framed 
without  difficulty,  providing  for  taking  the  votes  of  the 
soldiers  in  actual  service,  at  least  for  the  most  important 
offices,  viz.:  State  officers,  representatives  in  Congress, 


ILLINOIS  255 

and  members  of  the  Legislature.  In  the  election  of 
these  officers,  the  soldier,  although  away  from  home, 
takes  as  much,  if  not  more,  interest  than  the  citizen 
actually  on  the  spot.  He  reads  the  newspapers,  receives 
letters  from  his  friends,  and  in  fact  understands  the 
issues  of  the  day  as  well  as,  if  not  better  than,  the  man 
for  the  defense  of  whose  home  he  has  taken  up  arms. 

"It  may  be  objected,  that  great  difficulty  and  expense 
would  necessarily  be  created  in  taking  the  vote  of  the 
army  in  the  field.  But  I  submit  that  nearly  all  the 
difficulty  and  expense  would  be  obviated  by  the  follow- 
ing simple  and  effective  plan:  The  three  field  officers, 
or  in  their  absence,  the  three  ranking  officers  of  each 
regiment  of  infantry  or  cavalry,  and  three  highest  com- 
missioned officers,  or  those  acting  in  their  places,  of  each 
battery  of  artillery,  or  each  company  or  squadron  of 
infantry  or  cavalry  on  detached  service,  might  be  made 
the  inspectors  of  the  election,  with  power  to  appoint  the 
proper  person  clerk  of  the  election,  so  that  the  vote  may 
be  taken  on  the  day  fixed  by  the  Constitution."  * 

January  4,  1863,  a  bill  was  introduced  in  the 
House,  "To  extend  the  right  of  suffrage  to  the 
volunteer  soldiers  of  the  State  of  Illinois  in  the 
service  of  the  United  States,"  which  was  referred 
to  the  Committee  on  the  Judiciary.  February  13th 
a  majority  of  the  Committee  reported  that  the  bill 
would  be  unconstitutional.  They  saM: 

"The  object  sought  to  be  accomplished  by  the  bill  in 
question,  is  one  appealing  directly  to  the  patriotism  as 
well  as  the  sympathy  of  your  committee,  and  each  has 
felt  an  honest  desire  to  make  such  provision  by  statute 
as  would  secure  the  result  desired.  The  bill  in  question 
proposes  to  permit  soldiers  in  the  army  to  vote  'wherever 
said  soldiers  may  be  located  or  doing  military  duty,'  on 


1  House  Journal,  1863,  pp.  43,  44. 


256  VOTING  IN  THE  FIELD 

the  day  appointed  by  law  for  holding  elections;  and 
further  provides  that,  in  case  the  election  cannot  be  held 
on  that  day,  that  it  'may  be  held  on  the  first  convenient 
day  thereafter  within  the  next  ten  days.' 

"An  inspection  of  the  Constitution  of  the  State  will 
show  that  the  propositions  above  are  inconsistent  with 
the  terms  of  that  instrument,  and  we  will  not  argue  the 
proposition  that  the  Constitution  in  its  provisions  must 
prevail,  and  that  all  legislation  must  conform  to  the 
requirements  of  that  instrument.  Section  9  of  Article 
VI  provides  that  'General  elections  shall  be  held  on  the 
Tuesday  next  after  the  first  Monday  of  November, 
biennially,  until  otherwise  provided  by  law.'  This 
Section,  in  the  judgment  of  your  committee,  disposes  of 
the  proposition  to  hold  said  election  on  the  'next  con- 
venient day  thereafter.'  If  it  be  urged  that  this  bill 
comes  within  the  meaning  of  that  Section  of  the  Consti- 
tution, because  the  Constitution  itself  admits  the  right 
to  change  the  time  for  such  elections,  the  answer  comes 
readily  that  this  bill  does  not  change  the  time  of  holding 
such  elections,  but  merely  provides  that  soldiers  may 
vote  for  candidates  at  times  different  from  the  one  fixed 
by  the  Constitution  and  provided  by  law.  And,  in  the 
judgment  of  your  committee,  no  provision  of  law  could 
be  available  that  required  the  soldiers  to  vote  on  any 
one  particular  day,  to  be  fixed  by  law,  and,  therefore, 
no  constitutional  act  can  be  passed  that  will  fully  ac- 
complish or  secure  the  result  desired  in  point  of  time  of 
holding  general  elections. 

"  Again,  Section  1  of  the  same  Article,  provides  that 
'No  citizen  or  inhabitant  shall  be  entitled  to  vote  except 
in  the  district  or  county  in  which  he  shall  actually  reside 
at  the  time  of  such  election.'  This  section,  in  the  judg- 
ment of  your  committee,  admits  of  but  one  construction, 
which  construction  is  fatal  to  the  bill  in  question.  The 
voter  must,  according  to  the  Constitution,  vote  'in  the 
district  or  county  in  which  he  shall  actually  reside  at 


ILLINOIS  257 

the  time  of  such  election.'  Unless  some  other  construc- 
tion than  the  one  given  by  your  committee  can  be  legit- 
imately placed  upon  this  clause  of  the  Constitution,  we 
are,  as  legislators,  stopped  from  the  further  considera- 
tion of  the  subject.  It  has  been  urged  that  Section  5, 
of  the  same  Article,  which  provides  that  'no  elector 
shall  be  deemed  to  have  lost  his  residence  in  this  State 
by  reason  of  his  absence  on  the  business  of  the  United 
States  or  of  this  State,'  will  enable  such  electors  to  vote. 
True,  the  right  to  vote  is  not  lost  by  reason  of  any  length 
of  absence  'on  business  of  the  United  States  or  of  this 
State'  but  this  right  to  vote  does  not  suspend  the  pre- 
ceding section,  which  requires  them  to  vote  'in  the  dis- 
trict or  county  in  which  they  shall  actually  reside  at  the 
time  of  such  election.'  The  provisions  recited  must, 
as  legal  propositions,  be  construed  together  and  when 
so  construed,  your  committee  arrive  at  the  conclusion 
that  absence  for  years,  on  business  of  the  United  States 
or  of  this  State,  will  not  disfranchise  a  citizen.  His 
right  to  vote  remains  inviolate,  and  well  attaches,  in  its 
full  extent  the  moment  such  elector  returns  to  the  district 
or  county  in  which  he  may  reside.  The  undersigned 
members  of  your  committee  are,  therefore,  of  opinion 
that  under  the  Constitution,  no  provision  can  be  made 
to  extend  the  right  of  suffrage  beyond  the  limits  of  the 
State. 

"If  it  be  urged  that  a  precedent  for  such  provision 
exists  in  the  action  of  the  constitutional  convention  on 
this  subject,  it  may  be  replied  that  the  convention  met 
to  propose  amendments  to  the  constitution,  and  have 
power  to  provide  when  and  how  the  electors  of  the  State 
might  pronounce  upon  the  amendments  or  propositions 
submitted;  whilst,  on  the  other  hand,  this  Legislature 
meets  under  the  Constitution  to  make  laws  in  accordance 
with  its  terms  and  provisions;  and,  in  the  judgment  of 
your  committee,  its  terms  and  provisions  forbid  the  legis- 
lation proposed  in  the  bill  under  consideration.  Being 


258  VOTING  IN  THE  FIELD 

constrained  by  our  regard  for  the  Constitution  to  decide 
as  above,  your  committee  feel  justified,  in  this  connection, 
in  placing  upon  record  their  high  appreciation  of  the 
gallant  services  rendered  by  our  volunteer  soldiery  in  the 
terrible  conflict  in  which  we  are  engaged.  Patriotic  in 
sentiment,  brave  in  conduct,  they  will  be  ever  held  in 
grateful  memory  by  the  people  of  their  loved  Illinois. 
Your  committee  would  gladly  and  proudly  make  the 
proposed  distinction  in  favor  of  our  volunteer  soldiers, 
as  the  class  most  worthy  of  exercising  the  elective  fran- 
chise, could  such  discrimination  be  made  in  a  constitu- 
tional manner,  but  as,  in  the  judgment  of  your  committee, 
it  cannot  be  done,  we  ask  to  be  discharged  from  the 
further  consideration  of  the  subject."  1 

A  minority  of  the  committee  reported  in  favor  of  the 
bill  and  recommended  its  passage.  They  said: 

"A  minority  of  your  committee  on  judiciary,  to  which 
was  referred  House  bill,  No.  35,  entitled  a  bill  for  'An 
act  to  extend  the  right  of  suffrage  to  volunteer  soldiers 
of  the  State  of  Illinois  in  the  service  of  the  United  States/ 
do  not  concur  with  the  majority  of  your  committee  in 
reporting  against  the  passage  of  said  bill,  and  beg  leave 
briefly  to  state  the  reasons  of  their  nonconcurrence.  We 
do  not  agree  that  it  would  be  a  violation  of  the  consti- 
tution to  change  the  tune  of  holding  the  general  election 
in  favor  of  the  soldiers.  The  constitution  only  fixes  the 
present  time  of  holding  the  election  until  'otherwise 
provided  by  law.'  We  regard  it  as  perfectly  competent 
for  the  legislature  to  change  the  time  for  the  purpose 
of  enabling  the  vote  of  the  soldiers  to  be  taken,  as  pro- 
posed in  this  bill.  We  fail  to  see  any  constitutional 
objection  on  this  point. 

"As  to  the  next  constitutional  objection  made  by  the 
majority  of  the  committee,  upon  the  language  of  the 
constitution  that  no  citizen  or  inhabitant  shall  be  entitled 


1  House  Journal,  1863,  pp.  589,  590. 


ILLINOIS  259 

to  vote  except  in  the  'district  or  county  in  which  he 
shall  actually  reside  at  the  time  of  such  election.'  We 
believe  that  this  language,  taken  in  connection  with  the 
section  of  the  same  article  of  the  constitution  which 
declares  that  'no  elector  shall  be  deemed  to  have  lost 
his  residence  in  this  State  by  reason  of  his  absence  on 
the  business  of  the  United  States  or  of  this  State,'  leaves 
but  little  question  about  the  right  to  extend  the  right  of 
suffrage  to  the  soldiers  of  this  State  in  the  service  of  the 
United  States.  We  regard  the  right  of  suffrage,  or  the 
right  'to  vote,'  as  a  right  of  the  voter  to  express  his 
choice  for  the  individuals  whom  he  designates  for  the 
offices  to  be  filled.  The  act  of  voting,  therefore,  is  the 
act  of  expressing  such  choice,  and  in  our  judgment 
the  constitution,  properly  construed,  intends  only  to  limit 
this  expression  of  choice  to  candidates  for  office  who  may 
properly  be  voted  for  in  the  district  or  county  in  which 
the  voter  has  a  legal  residence;  the  soldier  clearly,  under 
the  constitution,  having  such  legal  residence  in  the  county 
or  district  where  he  resided  at  the  time  of  his  enlistment 
and  which  he  regards  as  his  home.  We  have  not  time 
to  elaborate  this  view  and  can  only  give  an  outline  of  it. 
"As  to  the  precedent  established  by  the  late  consti- 
tutional convention,  we  have  to  say  that  although  we 
do  not  insist  that  it  is  of  very  great  authority  upon 
constitutional  questions,  yet  we  cannot  agree  that  that 
convention  had  authority  to  set  aside  the  present  con- 
stitution until  the  one  they  proposed  in  its  stead  was 
adopted  by  the  people.  We  do  not  believe  that  the 
constitutional  convention  was  any  more  above  what  was 
then  and  continues  to  be  the  constitution  of  the  state 
than  any  other  body  of  men  who  may  have  been  con- 
vened in  pursuance  of  its  provisions.  The  old  constitu- 
tion was  the  supreme  law  of  the  land  and  continues  to  be, 
and  could  only  have  been  superseded  by  the  adoption  of 
the  new.  We  submit  then  that  the  convention  was 
governed  by  our  present  constitution,  and  that  the  prece- 


260  VOTING  IN  THE   FIELD 

dent  they  established,  so  far  as  it  is  entitled  to  weight, 
is  in  point  of  favor  of  extending  the  right  of  suffrage  to 
the  soldiers  in  the  service  of  their  country. 

"In  conclusion  we  wish  only  to  say  that  we  think  our 
brave  soldiers  who  have  shed  such  imperishable  renown 
by  their  gallant  and  glorious  deeds  upon  our  noble  state, 
who  incur  all  the  hardships  of  the  service  and  peril  their 
lives  for  our  country  and  its  liberties,  ought  not  to  be 
disfranchised;  and  that  the  constitution  ought  to  be 
liberally  construed  in  favor  of  allowing  them,  while  in 
their  glorious  and  hazardous  service,  a  free  opportunity 
to  express  their  choice  in  favor  of  the  civil  officers  of  our 
State  and  general  government. 

"We  hope  the  report  of  the  majority  of  the  committee 
will  not  be  concurred  in,  and  that  the  bill  will  be  put 
upon  its  passage."1 

There  was  extended  debate  on  the  subject.  Finally 
the  previous  question  was  ordered,  and  the  House 
adopted  the  majority  report  of  the  Committee  by 
a  yea  and  nay  vote  of  46  Democrats  to  23  Repub- 
licans.2 

In  the  Senate  a  bill  was  introduced  on  June  4th, 
1863,  "To  allow  Illinois  soldiers  in  the  service  of 
the  United  States  to  vote  at  all  general  State  elec- 
tions and  for  electors  of  President  and  Vice-presi- 
dent of  the  United  States,"  which  was  referred  to 
a  special  committee  of  five.3  This  was  only  four 
days  before  the  Legislature  was  prorogued  by  the 
Governor  and  nothing  came  of  it.  This  ended  the 
attempt  for  a  soldier's  voting  bill  in  1863. 

This  Legislature  indulged  in  about  the  same 
resolutions  and  counter-resolutions  about  the  war,  an 
armistice,  illegal  arrests,  Emancipation  Proclamation, 


House  Journal,  1863,  pp.  591,  592. 
1  Ibid.,  p.  591.  »  Senate  Journal,  1863,  p.  343. 


ILLINOIS  261 

etc.,  as  the  Indiana  Legislature.  It  accomplished 
very  little  real  legislation.  Finally  its  career  was  cut 
short  by  prorogation  by  Governor  Yates  on  the  10th 
of  June  because  the  House  and  the  Senate  had  dis- 
agreed about  the  time  of  an  adjournment.  The 
validity  of  this  prorogation  was  contested  by  the 
Democrats  and  their  state  of  mind  at  that  time  is 
perhaps  best  shown  by  the  following  extract  from 
the  brief  of  Melville  W.  Fuller,  afterwards  Chief 
Justice  of  the  Supreme  Court  of  the  United  States,  - 
"Malignant  partizanship  could  go  no  farther.  The 
annals  of  political  warfare  display  no  grosser  in- 
fraction of  the  dignities  and  amenities  of  private  or 
official  life.  .  .  .  Since  the  members  of  the  long 
parliament  were  driven  from  their  seats  with  op- 
probious  epithets  by  Cromwell  there  has  been  no 
such  exhibition  of  vituperative  lawlessness."  The 
validity  of  the  prorogation  was  sustained  by  the 
Supreme  Court,  and  then  the  Democrats  abused 
the  Court. 

The  Legislature  met  once  in  two  years  and  in 
1865,  there  was  a  Republican  majority  of  three  in 
the  Senate  and  of  17  in  the  House.  Governor 
Yates  renewed  his  recommendation  at  some  length, 
and  as  it  states  the  case  as  strenuously  as  possible, 
I  quote  it  in  full: 

"In  my  last  message  I  recommended,  in  strong  terms, 
the  importance  and  justice  of  an  enactment  extending 
to  our  citizen  soldiers,  in  the  field,  the  right  of  suffrage, 
but  no  action  was  had  upon  the  same.  During  the  last 
two  years  the  subject  has  been  fully  considered  and  acted 
upon  in  many  of  the  loyal  States,  and  although  the  con- 
stitutions of  the  States  have  been  framed  without  refer- 
ence to  a  state  of  war,  yet  the  subject  has  undergone 
the  scrutiny  of  the  highest  judicial  tribunals,  and  the 


262  VOTING  IN  THE  FIELD 

right  to  take  the  votes  of  soldiers  in  the  field  has  been 
clearly  recognized.  Laws  passed  for  this  purpose  have 
been  carried  into  operation  and  found  to  operate  well, 
without  any  public  injury.  I  can  see  nothing  in  our  State 
constitution  which  prohibits  the  passage  of  such  a  law. 
Section  1,  Art.  6  of  our  State  constitution,  provides  as 
follows:  'In  all  elections,  every  white  male  citizen,  above 
the  age  of  twenty-one  years,  having  resided  in  the  State 
one  year  next  preceding  any  election,  shall  be  entitled 
to  vote  at  such  election;  and  every  white  male  inhabi- 
tant, of  the  age  aforesaid,  who  may  be  a  resident  at  the 
time  of  the  adoption  of  this  constitution,  shall  have  the 
right  of  voting  as  aforesaid;  but  no  such  citizen  or  in- 
habitant shall  be  entitled  to  vote,  except  in  the  district 
or  county  in  which  he  shall  actually  reside  at  the  time 
of  such  election.'  It  is  evident,  from  this  clause,  that 
the  elector  cannot  vote  in  any  other  precinct  than  that 
in  which  he  actually  resides. 

"Section  5,  Art.  6  of  the  constitution  of  this  State, 
provides  that  'No  elector  shall  be  deemed  to  have  lost  his 
residence  in  this  State  by  reason  of  his  absence  on  the 
business  of  the  United  States  or  of  this  State.' 

"Under  this  latter  clause,  a  minister  of  the  United 
States  to  a  foreign  court,  though  absent  for  years,  is  an 
actual  resident  of  the  district  or  county  in  which  he 
resided  at  the  time  he  left  the  country,  on  his  mission. 
The  same  may  be  said  of  the  soldier  who  has  left  the 
county  or  district,  because  he  is  absent  on  the  business  of 
the  United  States,  and  therefore  does  not  lose  his  resi- 
dence. Now,  is  it  reasonable  to  presume  that  the  framers 
of  our  constitution,  while  thus  preserving  the  residence 
of  the  soldier,  evidently  for  the  purpose  of  securing  to 
him  the  right  of  suffrage,  at  the  same  time  meant  to  pro- 
hibit the  Legislature  from  making  any  provision  to  enable 
him  to  exercise  that  right?  While  the  elector  is  required 
'to  vote  in  the  district  or  county'  in  which  he  resides, 
it  is  not  necessarily  required  that  he  is  to  be  present,  in 


ILLINOIS  263 

person,  at  the  polls,  and  cast  his  vote.  The  object  of 
the  framers  of  the  constitution  was  to  preserve  the  purity 
of  the  ballot  box,  and  to  prevent  the  voter  from  voting 
more  than  once,  or  at  more  places  than  one,  at  the  same 
election.  The  object  evidently  was,  to  provide  that  his 
vote  should  only  be  cast  in  the  one  district  or  county 
in  which  he  resided.  Now  the  constitution  and  the  ob- 
jects of  its  framers,  are  fully  complied  with,  when  the 
soldier  has  cast  his  vote  in  his  district  or  county,  whether 
he  be  present,  and  cast  his  vote  there  in  person,  or  whether 
the  ballot  is  deposited  there  by  his  attorney,  under  the 
proper  checks  and  restrictions  —  as  to  his  qualifications 
of  age,  residence,  etc.  —  or  whether  his  vote  is  taken  in 
the  field,  in  some  mode  to  be  provided  by  the  Legislature, 
and  deposited  in  the  ballot  box  of  the  district  or  county 
in  which  he  resides,  as  has  been  provided  in  the  laws  of 
several  of  the  States.  The  following  plan,  with  such 
guards  and  details  as  will  prevent  frauds,  is  suggested,  as 
a  practicable  way  of  effecting  the  object:  The  three  field 
officers,  or,  in  their  absence,  the  three  ranking  officers  of 
each  regiment  of  infantry  or  cavalry,  and  three  highest 
commissioned  officers,  or  those  acting  in  their  places,  of 
each  battery  of  artillery,  or  each  company  or  squadron 
of  infantry  or  cavalry  on  detached  service,  might  be 
made  the  inspectors  of  the  election,  with  power  to  appoint 
the  proper  person  clerk  of  the  election,  so  that  every  vote 
may  be  taken  on  the  day  fixed  by  the  constitution. 

"There  is  no  way  of  reaching  the  case  by  amendment 
to  the  constitution,  without  disfranchising  the  soldier 
for  at  least  two  years  to  come,  for  the  constitution  requires 
that  two-thirds  of  the  General  Assembly  shall  recommend 
to  the  people  to  vote  for  or  against  calling  a  convention 
to  amend  the  constitution,  at  the  next  regular  election  of 
members  of  the  General  Assembly,  and  that  the  General 
Assembly  thus  elected  shall,  within  three  months,  call 
an  election  for  members  to  the  convention.  It  would  re- 
quire a  still  longer  time  to  reach  the  object  under  the 


264  VOTING  IN  THE  FIELD 

clause  which  provides  for  amendment  by  submitting  it 
as  a  single  proposition.  It  is  therefore  plain  that  if  this 
General  Assembly  fails  to  pass  a  law  authorizing  our 
soldiers  to  vote,  these  gallant  defenders  of  our  homes 
and  liberties  must  be  disfranchised  for  over  two  years  to 
come. 

"I  recommend  therefore  to  you,  as  one  of  your  first 
acts,  the  passage  of  a  law  providing  for  taking  the  votes 
of  our  soldiers  in  the  field.  Indeed,  I  will  say,  decorously 
however,  that  failure  to  protect  the  rights  of  the  noble 
men  who  have  left  business  and  property,  home  and 
kindred,  to  preserve  to  you  the  enjoyment  of  this  same 
peaceful  right  of  suffrage,  together  with  all  other  rights 
you  hold  dear,  would  subject  you  to  the  charge  of  being 
unfaithful  servants  to  your  country.  The  soldiers  are 
citizens;  they  are  the  people  of  the  country;  their  per- 
sons, their  families,  their  property,  their  rights  are  as 
deeply  affected  by  the  legislation  of  the  country  as  those 
of  the  citizens  who  remain  at  home,  in  the  quiet  enjoy- 
ment of  peace  and  safety.  If  the  soldier  is  not  worthy 
to  vote,  who  is?  If  he  who  bares  his  breast  to  the  storm 
of  battle,  and  bears  aloft  our  flag,  against  the  hordes  who 
are  madly  striving  to  tear  down  our  magnificent  temple 
of  constitutional  liberty;  if  he  shall  have  no  voice  in 
selecting  his  rulers,  who  shall?  Therefore  let  this  General 
Assembly  signalize  its  patriotism  by  this  act  of  prompt 
and  necessary  justice  to  the  gallant  citizen  soldier  of  the 
State. 

"I  would  suggest  to  the  General  Assembly  that,  while 
I  do  not  anticipate  an  unfavorable  decision  of  the  Supreme 
Court  upon  an  enactment  to  be  passed  securing  the  right 
of  suffrage  to  the  soldiers,  yet,  in  view  of  any  such  con- 
tingency, proper  action  should  be  taken  for  amendment 
to  the  constitution,  as  the  next  only  mode  of  securing 
the  object."  l 


1  Senate  Journal,  1865,  pp.  32,  33,  34. 


ILLINOIS  265 

On  January  18,  a  bill  was  introduced  in  the  House 
to  enable  the  qualified  electors  absent  from  the  State 
in  the  military  service  of  the  United  States  to  vote, 
which  was  referred  to  the  Committee  on  the  Judiciary, 
and  printed.  On  the  same  day  it  was  moved  that 
the  rules  be  suspended  so  as  to  admit  a  resolution 
asking  the  opinion  of  the  Supreme  Court  upon  the 
constitutionality  of  a  soldiers'  voting  bill.  This  was 
decided  in  the  negative  by  a  vote  of  46  nays  to  30 
yeas.  On  February  2,  the  soldiers'  voting  bill  was 
passed  by  a  vote  of  47  Republican  yeas  to  30  Demo- 
cratic nays.1  The  bill  was  received  in  the  Senate  on 
February  3,  and  referred  to  the  Committee  on  the 
Judiciary.  On  February  11,  the  Committee  reported 
the  bill,  and  filibustering  ensued  by  motions  to  spec- 
ially assign,  for  a  call  of  the  House,  etc.,  etc.  The 
bill  was  finally  passed  by  a  vote  of  14  Republican 
yeas  to  4  Democratic  nays.2 

This  Act  took  effect  on  February  16,  1865.  It 
was  in  its  title,  and  in  all  essential  particulars,  a  copy 
fo  the  New  York  Act  of  1864.  All  the  objec- 
tions to  the  New  York  Act  which  I  have  previously 
discussed  lie  against  the  Illinois  Act. 

There  could  be  no  separate  return  of  votes  cast 
under  it  because  under  the  Illinois  act,  as  under  the 
New  York  act,  nobody  could  tell  how  the  soldiers 
voted.  They  voted  by  proxy,  and  although  the 
ballots  might  have  been  kept  separate,  they  were  not. 

The  provisions  of  this  Act  do  not  appear  in  the 
compilation  of  Illinois  Statutes  of  1869. 


1  House  Journal,  1865,  pp.  246,  247,  513. 

*  Senate  Journal,  1865,  pp.  351,  365,  578,  585,  598. 


CHAPTER  XXV 

DELAWARE 

DELAWARE  was  really  a  border  State  and  had 
a  slave  population  in  1860  of  1,798.  Brecken- 
ridge,  the  presidential  candidate  of  the  Southern  De- 
mocracy received  7,340  votes  against  3,815  for  Lincoln, 
and  the  electoral  vote  of  the  State  went  to  him.  The 
General  Assembly  in  1861  was  controlled  by  the  Demo- 
crats in  the  Senate,  and  by  the  Peoples'  Party,  so 
called,  in  the  House.1 

It  attempted  to  remain  neutral,  or,  as  its  Gover- 
nor said  in  his  message,  "laying  no  impediment  in 
the  way  of  the  Government,  nor  affording  its  enemies 
any  sort  of  aid."  A  resolution  pledging  the  support 
of  the  State  to  the  Government  of  the  United  States 
was  passed  in  the  Senate  by  a  vote  of  4  to  2,  and 
refused  passage  in  the  House  by  a  vote  of  11  to  10. 

Delaware  furnished  its  quota  of  troops  to  the 
Union  during  the  Civil  War.  Comparatively  few 
men  were  drafted,  owing  to  the  fact  that  the  State 
volunteers  supplied  the  quota  required.  The  number 
of  troops  furnished  during  the  war  was  13,365,  of 
whom  10,303  served  for  three  years,  or  until  the  end 
of  the  war.2 

It  attempted  to  give  them  the  right  to  vote  out  of 
the  State. 

On  February  4th,  1862,  a  bill  was  introduced  in 
the  House  providing  for  soldiers'  voting  in  the  field, 

1  History  of  Delaware,  Conrad,  Vol.  1,  p.  194  et  seq.  2  Ibid.,  p.  213. 


DELAWARE  267 

and  was  read.  On  February  6th,  the  bill  was  read  by 
paragraphs,  and  its  further  consideration  postponed 
to  the  following  day  when  it  was  taken  up  and  con- 
sidered and  killed  by  a  vote  of  ten  Republicans  in  its 
favor  and  eleven  Democrats  against  it.1 

In  1862,  a  plan  was  proposed  by  Lincoln  to  eman- 
cipate the  slaves  in  Delaware  by  paying  $900,000 
in  ten  equal  instalments  by  the  United  States  to  the 
State  of  Delaware,  and  out  of  this  the  slaveholders 
were  to  be  paid  what  each  slave  was  reasonably 
worth.  This  measure  was  not  introduced  into  the 
Assembly,  because  it  was  found  that  it  would  be 
rejected. 

The  "Emancipation  Bill,"  so  called,  to  carry  out 
the  President's  plan  was  set  forth  in  a  joint  resolution, 
in  which  the  House  placed  upon  record  the  grounds 
of  their  condemnation  of  it  which  were  in  brief,  that 
to  accept  it  would  "encourage  the  abolition  element  in 
Congress";  that  Congress  had  no  right  to  appropriate 
money  for  the  purchase  of  slaves  and  that  the  proposal 
to  do  so  "evinced  a  design  to  abolish  slavery  in  the 
States";  and  also  that  the  State  of  Delaware  would 
not  pledge  its  faith  for  the  payment  provided  for  by 
Congress  in  the  bill  because  "the  stocks  of  the  United 
States  are  selling  at  a  continually  increasing  rate  of 
discount  in  the  market";  and  finally  they  resolved: 

"That  when  the  people  of  Delaware  desire  to  abolish 
slavery  within  her  borders,  they  will  do  so  in  their  own 
way,  having  due  regard  to  strict  equity;  that  any  inter- 
ference from  without,  and  all  suggestions  of  saving  expense 
to  the  people,  or  others  of  like  character,  are  improper  to 
be  made  to  an  honorable  people  such  as  we  represent,  and 
are  hereby  repelled;  that  though  the  State  of  Delaware  is 


1  House  Journal,  Special  Session,  1861-2,  p.  207,  229,  266,  269. 


268  VOTING  IN  THE  FIELD 

small  and  her  people  not  of  the  richest,  they  are  beyond  the 
reach  of  any  who  would  promote  an  end  by  improper  inter- 
ference and  solicitations."  l 

The  slaves  in  Delaware  were  not  freed  by  the 
Emancipation  Proclamation,  but  exempted  from  it. 
In  1865,  the  Governor  urged  the  Legislature  to  take 
measures  for  the  emancipation  of  the  slaves,  but  the 
Legislature  being  Democratic  took  no  action,  except 
to  declare  their  opposition  to  the  passage  by  Congress 
of  a  bill  granting  the  franchise  to  negroes  in  the  Dis- 
trict of  Columbia.  They  said  "the  immutable  laws 
of  God  have  fixed  upon  the  brow  of  the  white  races 
the  ineffaceable  stamp  of  superiority,  and  that  all 
attempts  to  elevate  the  negro  to  a  social  and  political 
equal  of  the  white  man  is  futile  and  subversive  of  the 
ends  and  aims  for  which  the  American  Government 
was  established,  and  contrary  to  the  doctrines  and 
teachings  of  the  Fathers  of  the  Republic." 

They  rejected  the  Fourteenth  Amendment  to  the 
Constitution  of  the  United  States  by  a  vote  of  15  to 
6.  The  Fifteenth  Amendment  was  also  rejected  by  a 
vote  of  19  to  2.  The  result  was  that  the  stubborn 
little  State  had  emancipation  and  universal  suffrage 
thrust  upon  it  against  its  objection,  and  had  no 
money.2 


1  House  Journal,  Special  Session,  1861-2,  p.  240. 

2  History  of  Delaware,  Conrad,  Vol.  1,  pp.  222,  223. 


CHAPTER  XXVI 

NEW  JERSEY 

NEW  JERSEY  provided  as  early  as  1815  for  vot- 
ing in  the  field  by  its  soldiers  when  in  the  actual 
military  service  of  the  United  States  or  of  the  State 
of  New  Jersey.  The  act  which  did  this  was  passed 
February  16,  1815,  and  provided  that  whenever  any 
citizen,  having  the  right  to  vote  at  a  general  election, 
should  be  in  actual  military  service  under  a  requisi- 
tion from  the  President  of  the  United  States,  or  the 
Executive  of  the  State,  on  the  days  appointed  by 
law  for  general  elections,  such  citizens  should  be 
entitled  to  exercise  the  right  of  suffrage,  "at  such 
places  as  may  be  prescribed  by  the  commanding 
officer  of  the  company  or  troop  to  which  he  or  they 
shall  respectively  belong,"  provided  that  such  elec- 
tion shall  "take  place  at  ten  o'clock  on  the  first  day 
appointed  by  law  for  such  election  and  be  closed  at 
seven  o'clock  on  said  day,  after  which  the  officers 
for  conducting  such  election  shall  proceed  publicly 
to  count  all  the  votes  so  taken,  and  shall  make  and 
sign  their  returns  of  said  elections  before  they  sepa- 
rate." The  act  provided  that  a  Captain  or  command- 
ing officer  of  each  company  or  troop  should  act  as 
judge  of  the  election,  that  the  First  Lieutenant 
should  act  as  inspector,  and  the  Second  Lieutenant 
as  clerk,  and  that  "the  said  officer  shall  use  a  hat 
or  cap,  which  shall  be  most  convenient,  in  which 
to  receive  and  hold  the  votes  when  received,  instead 
of  a  box."  One  of  the  judges  of  the  election  was 


270  VOTING  IN  THE  FIELD 

required  to  transmit  the  returns  to  the  clerk  of  each 
and  every  county  wherein  which  the  soldiers  having 
voted  would  have  voted  if  they  had  not  been  on 
actual  military  service.  The  judges,  inspectors  and 
clerks  were  required  respectively  to  send  "under  their 
hands  and  seals  to  the  clerk  of  each  county  all  the 
tallies  and  lists  of  votes."  The  officers  authorized 
to  hold  the  election  were  to  take  the  oaths,  and  the 
persons  who  offered  to  vote  were  subject  to  the 
same  penalties,  as  would  be  enforced  if  the  election 
were  held  in  the  proper  country.1 

This  act  was  repealed  June  13,  1820.2 
Nothing  more  was  heard  of  soldiers  voting  in  the 
field  until  the  Civil  War.  The  Legislature  of  1864 
then  received  nearly  140  separate  petitions  coming 
from  every  county  in  the  State  and  embracing  over 
37,000  citizens,  all  asking  for  the  passage  of  a  law 
to  enable  soldiers  to  vote  in  the  field.  On  February 
17,  1864,  an  act  was  introduced  to  authorize  soldiers 
to  vote  in  the  field,  which  was  read  and  referred  to 
the  Committee  on  Elections.  On  March  8,  a  major- 
ity of  the  Committee  on  Elections  presented  the  fol- 
lowing report  upon  the  bill: 

"The  bill  in  substance  provides,  that  on  the  day  ap- 
pointed for  the  holding  of  any  election  by  the  laws  of 
this  State,  a  poll  shall  be  opened  at  the  quarters  of  the 
captain  of  each  company  in  the  military  service,  wherever 
the  company  may  then  happen  to  be,  and  that  all  electors 
belonging  to  such  company,  who  may  be  within  two  miles 
of  the  polls  on  that  day,  may  vote  at  such  poll;  that  de- 
tached men  may  vote  at  any  poll  they  may  deem  most 
convenient,  and  that  men  stationed  at  posts  or  hospitals 
may  vote  at  the  same  wherever  situated.  The  avowed 

1  Laws  of  New  Jersey,  1814-15,  p.  16. 

2  Public  Acts,  Forty-fourth  Gen.  Assembly  N.  J.,  p.  177. 


NEW  JERSEY  271 

purpose  of  the  act  is  to  authorize  persons  to  vote  for  civil 
officers  at  places  outside  the  county  of  their  residence,  and 
indeed  outside  of  the  boundaries  of  the  State.  The  bill 
is  in  direct  conflict  with  the  Constitution  of  New  Jersey, 
and  therefore  it  should  not  pass. 

"The  clause  of  our  Constitution  which  relates  to  the 
right  of  suffrage  will  be  found  in  the  second  article  of  that 
instrument.  The  language  is  as  follows,  viz:  'Every 
white  male  citizen  of  the  United  States  of  the  age  of 
twenty-one  years,  who  shall  have  been  a  resident  of  this 
State  one  year,  and  of  the  County  in  which  he  claims  his 
vote  five  months  next  before  the  election,  shall  be  entitled 
to  vote,  &c.'  This  clause  is  intended  to  express  and  does 
distinctly  express  two  essential  requisites  to  the  enjoy- 
ment of  the  right  of  suffrage;  first,  the  qualifications  to 
constitute  a  legal  voter;  and  second,  the  place  where  quali- 
fied voters  may  exercise  the  right.  The  words  clearly  im- 
ply that  every  white  male  citizen  of  the  United  States,  of 
the  age  of  twenty-one  years,  who  shall  have  been  a  resi- 
dent of  this  State  one  year,  and  also  a  resident  of  some 
county  of  this  State  for  five  months  next  preceding  the 
election,  is  a  legal  voter  in  such  County;  and  that  if  he 
claim  his  vote  in  that  county  he  may  vote  there.  But  if 
he  claims  his  vote  in  any  other  place  than  within  the 
county  where  he  has  so  resided,  he  is  not  a  legal  voter 
in  that  other  place.  This  is  the  only  construction  that 
can  be  given,  if  words  are  regarded  in  their  common  and 
accepted  signification,  which  is  the  true  rule  of  interpre- 
tation in  such  cases." 

The  committee  then  cited  at  length  from  the  de- 
cisions in  Pennsylvania,  Connecticut  and  New  Hamp- 
shire against  the  soldiers'  voting  acts  in  those  States 
in  support  of  their  construction. 

They  then  said: 

"But  it  may  be  contended  that,  although  the  Consti- 
tution does  not  authorize  voting  out  of  the  State,  yet  it 


272  VOTING  IN  THE   FIELD 

does  not  forbid  it;  and  therefore  that  the  Legislature  may 
pass  this  act  without  violating  the  Constitution.  This  ob- 
jection has  been  disposed  of  by  the  Supreme  Court  of 
Connecticut,  in  the  decision  to  which  reference  has  been 
made.  The  learned  Judge  who  delivered  the  opinion  of 
the  court  in  that  case,  uses  the  following  conclusive  lan- 
guage upon  this  point:  'Nor  can  it  with  truth  or  safety 
be  said,  that  although  the  Constitution  prescribed  a  certain 
place  where  votes  may  be  cast,  it  does  not  prohibit  their 
being  cast  in  any  other  place.  Neither  in  Constitution 
nor  statutes  do  men  deem  it  necessary  to  accompany  an 
express  and  full  direction  to  do  a  particular  thing  in  a 
particular  way,  by  an  express  direction  not  to  do  it  in 
any  other.  Officers  civil  and  military  understand  that 
every  such  direction  of  a  superior,  carries  with  it  an 
implied  prohibition  against  doing  the  thing  prescribed  in 
any  other  way.' 

"But  suppose  there  was  doubt  about  the  meaning 
of  the  language  of  the  Constitution,  and  that  there  had 
been  no  judicial  construction  of  the  words,  still  every  test 
usually  applied  to  discover  the  intent,  proves  that  the 
holding  of  an  election  out  of  the  State  was  never  contem- 
plated. We  are  often  able  to  discover  the  true  construc- 
tion of  constitutional  provisions,  by  consulting  former 
constitutions,  and  antecedent  or  contemporaneous  statutes, 
relating  to  the  same  subject.  No  concession,  constitution, 
or  law  of  the  province,  colony,  or  State  of  New  Jersey,  has 
ever  authorized  voting  at  any  place,  except  within  our 
territorial  bounds.  If  it  had  been  intended  by  the  framers 
of  our  new  Constitution  to  change  the  settled  law  and 
usage  which  had  prevailed  from  the  earliest  settlement  of 
the  country,  through  all  the  wars  in  which  our  people  had 
participated,  such  change  would  have  been  expressly  pro- 
vided for  in  that  instrument,  by  the  use  of  such  terms  as 
could  not  be  misapprehended.  Some  alterations  were 
made  in  the  qualifications  of  voters,  the  former  property 
qualification  was  abolished,  and  residence  in  the  county 


NEW  JERSEY  273 

altered  from  twelve  to  five  months;  but  no  change  was 
made  in  the  place  of  voting.  The  Constitution  of  1776, 
which  was  in  force  when  that  of  1844  was  formed,  re- 
quired that  if  an  inhabitant  of  the  colony  claimed  to  vote, 
it  should  be  in  the  county  where  he  had  resided  twelve 
months.  The  election  law  of  1839,  which  was  in  force  in 
1844,  defined  clearly  what  was  at  the  time  understood  to 
be  the  meaning  of  the  constitutional  provision  in  respect 
to  the  place  of  voting.  The  first  section  of  that  act  reads 
as  follows,  viz.:  'Every  free  white  male  citizen  of  the 
United  States  of  the  age  of  twenty-one  years  or  upwards, 
who  shall  be  worth  fifty  pounds  proclamation  money  clear 
estate  in  this  State,  and  shall  have  resided  in  the  county 
in  which  he  shall  claim  a  right  to  vote  for  one  whole  year 
next  preceding  any  election  which  shall  be  held  under  this 
act,  shall  have  a  right  to  vote  THEREIN,  IN  THE  TOWNSHIP 

IN  WHICH  HE  SHALL  ACTUALLY  RESIDE,  AND  NOT  ELSE- 
WHERE.' This  was  a  legislative  interpretation  of  the 
meaning  of  the  Constitution  then  existing  in  reference 
to  the  place  of  voting,  which  as  has  already  been  stated, 
agreed  with  the  present  instrument  in  that  particular. 
The  first  act  regulating  elections  passed  after  the  adop- 
tion of  the  new  Constitution,  may  be  found  in  the  pamph- 
let laws  of  1845,  and  in  it  we  find  the  construction  of  its 
provisions  in  reference  to  the  right  of  suffrage  made  by 
a  Legislature  elected  the  same  year  the  Constitution  was 
adopted.  The  language  of  the  statute  is  almost  identical 
with  that  of  the  new  Constitution,  and  where  it  differs, 
it  appears  to  have  been  intended  to  elucidate  and  explain 
any  possible  obscurity  in  the  terms  of  the  Constitution. 
We  quote  from  the  Act  of  April  4th,  1845,  as  follows,  viz: 
*  Every  white  male  citizen  of  the  United  States  of  the  age 
of  twenty-one  years  or  upwards,  who  shall  have  been  a 
resident  of  this  State  one  year,  and  of  the  county  in  which 
he  claims  his  vote  five  months  next  before  the  election,  is 
entitled  to  vote  in  the  township  in  which  he  actually  resides, 
and  not  elsewhere.'  The  man  who  claims  his  vote  must 


274  VOTING  IN  THE  FIELD 

exercise  the  right  in  some  township  of  the  county  in  which 
he  resides  and  not  elsewhere.  He  cannot  constitutionally 
vote  out  of  the  county,  but  he  may  be  required  by  legis- 
lative enactment  to  exercise  the  right  of  suffrage  which 
he  claims  in  some  sub-division  within  the  county  of  his 
residence. 

"There  is  another  consideration  which  proves  that  it 
was  never  intended  to  allow  the  holding  of  elections  out 
of  the  State.  No  one  can  be  punished  here  for  an  offence 
committed  in  another  State,  nor  can  any  one  be  punished 
there  for  any  offence  against  our  laws.  It  follows,  there- 
fore, that  any  act  regulating  such  elections  would  be  en- 
tirely inoperative,  and  if  twenty  more  sections  were  added 
to  this  voluminous  bill,  prescribing  for  violation  of  its  pro- 
visions all  the  penalties  to  be  found  in  the  statute  book  it 
could  not  be  enforced.  The  framers  of  the  Constitution 
never  intended  to  give  the  Legislature  the  power  to  order 
elections  beyond  the  operation  of  our  laws.  They  in- 
tended to  keep  the  ballot  box  within  the  control  of  our 
courts.  The  elective  franchise  is  the  very  corner  stone 
of  a  Republican  form  of  government.  If  it  cannot  be 
preserved  in  purity,  a  Republic  is  but  little  better  than  a 
monarchy.  If  the  sacred  right  of  suffrage  is  to  be  exer- 
cised in  places  where  the  law  is  powerless,  and  where  all 
legal  guards  usually  protecting  it  are  wanting,  it  is  of 
little  value.  Every  illegal  vote  infringes  to  that  extent 
upon  the  rights  of  legal  voters.  What  control  could  the 
laws  of  our  State  have  over  an  election  held  in  Virginia 
or  Tennessee,  in  Mississippi  or  Texas?  Just  as  much  and 
no  more  than  they  would  have  over  the  exercise  of  suf- 
frage in  London  or  Paris,  by  civilians  temporarily  absent, 
and  sojourning  in  those  cities.  Should  illegal  votes  be 
cast,  judges  swear  falsely,  voters  be  intimidated,  or  the 
ballot  box  be  tampered  with  by  partisan  officers,  how  could 
the  offenders  be  arrested  or  the  crime  punished?  .  .  . 

The  soldiers  know  that  an  opportunity  for  a  free,  full 
and  fair  exercise  of  the  right  of  suffrage  cannot  be  had  in 


NEW  JERSEY  275 

the  army  while  in  the  midst  of  an  active  campaign,  even 
if  the  Constitution  did  not  forbid.  Not  a  day's  notice  of 
the  place  of  voting  could  be  given,  because  none  could 
foresee  where  the  exigencies  of  the  service  would  require 
the  men  to  be  on  election  day.  The  military  authorities 
could  exclude  from  the  camp  any  papers  or  documents 
they  saw  fit;  they  could  if  they  thought  best,  admit  cer- 
tain persons  to  distribute  one  class  of  tickets  and  refuse 
passes  to  other  persons;  they  could  on  election  day,  order 
certain  men  on  duty  away  from  the  place  of  voting;  and, 
in  fact,  if  so  disposed,  they  could  in  many  ways  prevent 
a  full  and  free  ballot.  When  to  these  considerations  we 
add  the  fact,  that  no  law  can  be  passed  which  will  guard 
the  sanctity  of  the  ballot  box  opened  in  another  State, 
every  unprejudiced  man  must  admit  that  a  fair  vote  could 
not  be  had  by  the  soldiers  under  such  circumstances. 

"We  therefore  recommend  that  the  military  authorities 
be  requested  (if  the  public  service  will  allow)  to  permit 
the  New  Jersey  soldiers  who  are  legal  voters,  without 
regard  to  their  party  views  or  predilections,  to  come  to 
this  State,  on  the  days  appointed  for  elections,  and  as 
individual  voters  at  the  polls  in  their  respective  town- 
ships, among  their  neighbors,  untrammeled  by  military 
restraint,  and  under  protection  of  their  own  State  laws, 
freely  to  exercise  the  inestimable  right  of  suffrage." 

A  minority  of  the  Committee  presented  the  follow- 
ing report: 

"The  undersigned,  being  members  of  the  Committee  to 
whom  was  referred  the  bill  entitled  'An  Act  to  enable 
qualified  voters  of  this  State,  in  the  military  service  of 
this  State,  or  of  the  United  States,  to  exercise  the  right  of 
suffrage,'  respectfully  report  that  they  have  examined  and 
considered  its  provisions,  and  earnestly  recommend  the  pas- 
sage of  the  bill.  We  are  utterly  unable  to  conceive  how 
any  freeman  who  remains  at  home,  enjoying  the  security 
and  blessings  which  our  gallant  soldiers  are,  amid  peril  and 


276  VOTING  IN  THE  FIELD 

sufferings,  maintaining  for  them,  can  consent  to  deny  them 
this  most  sacred  right  of  freemen,  provided  it  is  in  accord- 
ance with  the  Constitution,  and  is  practicable  to  confer 
that  right. 

"The  elective  franchise  in  a  free  republic  can  be  en- 
trusted to  none  more  safely  than  to  those  who  are  volun- 
tarily fighting  the  battle  of  freedom  for  the  world. 

"If  there  are  any  who  for  partisan  purposes  desire  to 
withhold  this  right  from  those  who  fill  the  ranks  of  our 
patriot  army,  to  such  the  undersigned  have  no  arguments 
to  address.  The  only  questions  are,  is  it  constitutional  to 
permit  the  citizen  who  has  had  a  residence  in  this  State 
for  one  year,  and  in  the  county  where  the  election  at 
which  his  vote  is  to  be  counted  for  five  months  next  be- 
fore the  election,  to  cast  his  vote  without  his  being  present 
in  the  county  at  the  time  of  the  election;  and  if  it  is 
constitutional  is  it  practicable? 

"It  is  clearly  constitutional.  Our  Constitution  is  writ- 
ten. It  restrains  legislation  in  nothing  except  where  it  does 
so  expressly.  Where,  we  ask,  is  the  provision  of  the  Con- 
stitution, which  says,  the  voter  must  be  present  at  the 
polls,  or  in  the  county  when  voting? 

"The  only  restriction  of  the  Constitution  is  that  none 
shall  vote  except  the  'white  male  citizen  of  the  United 
States  of  the  age  of  twenty-one  years,  who  shall  have  been 
a  resident  of  the  State  for  one  year,  and  of  the  county  for 
five  months  next  before  the  election.'  This  provision  is 
found  in  the  second  article  of  the  Constitution. 

"The  fact  of  the  voters  being  absent  from  the  State  or 
county,  as  volunteers  or  drafted  men,  in  the  army  of  the 
United  States,  intending  to  return  to  their  homes,  does 
not  disqualify  them  as  voters. 

"The  courts  of  this  State  have  determined  that  the 
residence  to  entitle  a  person  to  vote  does  not  require  that 
he  should  be  constantly  within  the  county  or  State;  if  his 
fixed  home  is  established  within  the  State  one  year,  and 
within  the  county  five  months,  it  is  sufficient;  that  occa- 


NEW  JERSEY  277 

sional  absence  for  months,  even  with  his  family,  if  he  has 
the  intention  to  return,  will  not  take  away  this  right;  and 
that  a  residence  once  acquired  remains  a  residence  until 
residence  somewhere  else  is  acquired  by  a  removal  with 
the  intention  of  remaining;  and  that  an  absence  attend- 
ing to  a  public  duty  does  not  destroy  the  residence  of 
the  person  so  away. 

"It  is  a  very  proper  provision  of  our  statute  in  ordi- 
nary cases  to  require  the  voting  to  be  done  at  the  polls, 
and  by  ballot,  but  there  is  no  provision  of  the  Constitu- 
tion requiring  it.  If  there  is,  let  it  be  read.  If  there  is 
not,  then  the  Constitution  would  not  be  violated  by  a  law 
authorizing  the  white  male  citizen  soldier  of  twenty-one 
years,  who  has  the  residence  named,  to  vote  in  his  ranks. 

"It  has  been  suggested  that  the  law  would  not  be 
constitutional,  because  the  State  cannot  enact  and  en- 
force, out  of  the  State,  penalties  against  fraud  in  voting. 
Where,  we  ask,  is  the  provision  of  the  Constitution  that 
any  such  penalties  shall  be  enacted  or  enforced? 

"There  is  no  such  provision.  That  objection  may  be 
considered  under  the  only  other  question  there  is  relative 
to  the  subject,  viz.: 

"Being  constitutional,  is  it  practicable  to  have  our  sol- 
diers vote  out  of  the  State? 

"This  question  is  at  once  conclusively  answered  by 
the  fact  that  it  has  been  successfully  done  in  reference  to 
elections  in  other  States.  The  bill  provides  every  re- 
quisite check  and  guard  and  the  strict  military  discipline 
of  the  camp  is  infinitely  more  efficient  to  enforce  those 
checks  and  guards,  and  to  preserve  the  purity  of  the  elec- 
tion, than  is  the  civil  magistracy  of  the  country. 

"The  undersigned  perceive  no  force  in  the  suggestion, 
that  to  authorize  the  citizens  of  this  State  to  cast  their 
votes  when  in  another  State,  to  be  counted  in  this,  would 
be  an  infringement  of  the  sovereignty  of  such  State. 

"How  is  it  any  more  of  an  offence  for  a  citizen  of  this 
State  quietly  to  place  in  a  box  the  silent  missive  that  shall 


278  VOTING  IN  THE  FIELD 

here  make  known  his  political  sentiments,  than  to  send  a 
proxy  for  the  election  of  a  director  of  a  corporation,  or  a 
letter  to  his  family? 

"The  other  suggestion  made,  that  the  object  sought 
shall  be  attained  by  the  commanding  officer  permitting 
the  soldier  to  return  home  to  vote,  the  undersigned  look 
upon  as  a  poor  apology  for  refusing  to  brave  men  (whose 
every  privilege  should  be  dear  to  us)  a  just  and  valued 
right.  Their  return  home  is  dependent,  not  upon  the 
commanding  officer,  but  upon  the  fierce  and  desperate 
rebel  foe  they  are  facing. 

"To  invite  one  who  has  buckled  on  his  armor  to  do 
battle,  to  come  home  and  vote  while  the  enemy  is  before 
him,  is,  if  not  insulting,  trifling  with  him,  and  at  a  general 
election  would  be  equivalent  to  disbanding  the  army. 

"The  undersigned  recommend  the  passage  of  the  bill. 
It  will  be  proclaimed  along  the  lines,  and  the  regard 
thus  manifested  by  us  at  home  for  the  civil  right  of  our 
citizens  in  the  camp  will  inspire  them  with  new  courage, 
and  with  renewed  devotion  to  the  sacred  cause  of  civil 
liberty." 

One  thousand  copies  of  these  reports  were  printed. 
On  April  6,  it  was  moved  to  substitute  the  rec- 
ommendations of  the  minority  of  the  committee  that  the 
bill  be  passed,  for  the  recommendations  of  the  major- 
ity that  the  bill  do  not  pass,  which  motion  was  de- 
feated by  a  yea  and  nay  vote  of  nineteen  Republicans 
in  its  favor  and  thirty-one  Democrats  against  it,  and 
the  bill  was  defeated.1 

New  Jersey  took  no  further  action  to  enable  its 
soldiers  to  vote  in  the  field,  either  by  amending  its 
Constitution,  or  by  passing  an  act,  during  the  Civil 
War.  But  in  1875,  the  Constitution  was  amended 
by  adding  to  it  the  following  section: 


1  Minutes  of  the  House,  1864,  pp.  189,  364,  471,  491,  736,  737. 


NEW  JERSEY  279 

"And  provided  further,  that  in  time  of  war  no  elector 
in  the  actual  military  service  of  the  state,  or  of  the  United 
States,  in  the  army  or  navy  thereof,  shall  be  deprived  of 
his  vote  by  reason  of  his  absence  from  such  election  dis- 
trict; and  the  legislature  shall  have  power  to  provide  the 
manner  in  which,  and  the  time  and  place  at  which,  such 
absent  electors  may  vote,  and  for  the  return  and  canvass 
of  their  votes  in  the  election  districts  in  which  they  respec- 
tively reside."  l 

To  amend  the  Constitution  required  that  the 
amendment  should  be  agreed  to  by  a  majority  of  the 
members  elected  to  each  of  the  two  Houses,  and  en- 
tered on  their  journals  with  the  yeas  and  nays  taken 
thereon.  The  amendment  was  then  to  be  referred 
to  the  Legislature  next  to  be  chosen,  and  be  published 
in  at  least  one  newspaper  of  each  county;  and  if  in 
the  Legislature  next  chosen  such  amendment  should 
be  agreed  to  by  a  majority  of  all  the  members  of 
each  House,  it  was  then  to  be  submitted  to  the  people 
at  least  four  months  after  the  Legislature  adjourned, 
and  if  the  people,  at  a  special  election  held  for  that 
purpose  only,  should  approve  the  amendment  by  a 
majority  vote,  it  should  become  a  part  of  the  Con- 
stitution. 

The  method  of  amending  the  Constitution  adopted 
was  as  follows: — In  1873  a  House  bill  to  amend  the 
Constitution  in  various  particulars,  one  of  them  being 
to  enable  soldiers  to  vote  in  the  field,  was  under 
consideration  during  the  session,  and  finally  on  April 
4  was  ordered  to  be  engrossed,  but  on  the  same  day 
the  engrossment  was  reconsidered  and  the  bill  was 
refused  a  passage  by  a  vote  of  24  to  27. 2  On  the 
same  day  a  joint  resolution  authorizing  the  Governor, 

1  Compiled  Statutes  of  New  Jersey,  1911.      Vol.  1,  p.  xlix. 

2  House  Journal,  1873,  p.  425. 


280  VOTING  IN  THE  FIELD 

with  the  consent  of  the  Senate,  to  appoint  two  per- 
sons from  each  congressional  district  as  a  commission 
to  suggest  and  propose  amendments  to  the  Constitu- 
tion and  report  to  the  next  Legislature,  was  passed.1 

On  April  29,  the  Senate  was  convened  in  special 
session  by  the  Governor,  and  the  commission  was 
appointed.2  This  commission  reported  to  the  Legis- 
lature of  1874,  recommending  various  amendments  to 
the  Constitution.  Among  them  was  the  one  with  re- 
gard to  soldiers'  voting  in  the  field.3  These  amend- 
ments were  substantially  all  adopted  by  both  branches 
of  the  Legislature,  and  the  soldiers'  voting  amendment 
was  adopted  as  recommended  by  the  commission.4 

In  1875,  the  Governor  referred  to  the  amendments 
in  his  message  and  said  with  regard  to  the  soldiers' 
voting  amendment  that  it  was  right  that  soldiers  in 
the  field  should  be  given  the  right  to  vote  "provided 
that  right  was  carefully  guarded."  5 

The  amendments  were  adopted  by  the  Senate  and 
the  House  in  1875,  and  approved  by  the  people  at 
a  special  election  in  September,  1875.  In  the  revi- 
sion of  the  election  laws  of  1898,  Sections  220  to  233 
embrace  provisions  for  taking  the  vote  of  soldiers  in 
the  field.  These  provisions  are  a  proxy  law  author- 
izing soldiers  to  vote  substantially  in  the  manner  pro- 
vided for  the  vote  under  the  laws  of  New  York. 
They  are  now  Sections  220  to  232  of  the  Compiled 
Laws  of  New  Jersey  of  1910.  And  thus,  thirty-three 
years  after  the  close  of  the  Civil  War,  soldiers  from 
New  Jersey  were  given  the  right  to  vote. 


1  Senate  Journal,  1873,  p.  1068;   House  Journal,  1873,  p.  1431. 
1  Law  1873,  p.  844. 

3  Senate  Journal,  1874,  p.  50. 

4  Senate  Journal,  1874,  p.  71;   House  Journal,  1874,  pp.  841,  1145. 
6  House  Journal,  1875,  p.  39. 


CHAPTER  XXVII 

INDIANA 

INDIANA  was  the  most  troublesome,  turbulent  and 
changeable  State  of  the  North.  It  was  mainly 
settled  from  the  South  and  had  more  inhabitants  of 
Southern  birth  or  parentage  than  any  other  Northern 
State.  It  gave  Lincoln  in  1860  a  majority  of  only 
5,923  in  a  total  vote  of  272,143.  There  were  no 
general  elections  in  1861,  and  in  1862,  it  elected  a 
Democratic  Secretary  of  State  by  a  majority  of  9,543, 
and  a  Democratic  Senate  and  House.  The  Legislature 
met  on  January  8,  1863.  In  the  House  there  was  an 
anti-war  majority  of  20,  the  Democrats  having  58  and 
the  Republicans  38  votes.  In  the  Senate  there  were 
27  Democrats  to  20  Republicans.  In  a  joint  con- 
vention of  the  two  Houses,  Mr.  Turpie  and  Mr. 
Hendricks,  Democrats,  were  elected  United  States 
Senators  by  a  vote  of  85  to  62,  the  majority  being 
23.  A  preamble  and  resolution  was  presented  in 
the  House,  which  recited  that 

"Whereas  the  election  law  of  Indiana  requires  that 
every  voter  shall  cast  his  ballot  in  the  township  or  pre- 
cinct in  which  he  may  reside,  and  consequently  those 
brave  men  who  are  in  the  field  battling  for  the  suprem- 
acy of  the  law,  and  the  integrity  of  the  Union,  are  thereby 
disfranchised,  therefore,  the  Judiciary  Committee  is  di- 
rected to  inquire  into  the  expediency  of  reporting  a  bill  so 
amending  said  law  as  to  confer  upon  the  Indiana  volun- 
teers, now  in  the  service  of  the  United  States,  the  priv- 
ilege and  right  of  voting  for  State  and  County  officers  at 


282  VOTING  IN  THE  FIELD 

all  elections   held  therefor,  and  that  they  report    at    the 
earliest  practicable   moment."1 

The  Judiciary  Committee  reported  upon  this  reso- 
lution on  January  24,  saying  that  they  were  of  the 
opinion  that  such  a  law  would  be  unconstitutional, 
which  report  was  adopted  by  the  House.2 

To  amend  the  Constitution  required  that  the 
amendment  should  be  agreed  to  by  a  majority  of 
the  members  elected  to  each  House,  and  entered  on  the 
Journals  with  the  yeas  and  nays  thereon,  and  should 
then  be  agreed  to  by  a  majority  of  all  the  members 
elected  to  each  House  at  the  next  session  of  the  Leg- 
islature, and  then  submitted  to  the  electors,  and  if  a 
majority  of  the  electors  should  ratify  it,  it  should 
become  a  part  of  the  Constitution. 

At  the  session  of  1863,  nothing  was  done  with 
reference  to  amending  the  Constitution.  The  Con- 
stitution provided  that  a  qualified  elector  should  be 
"entitled  to  vote  in  the  township  or  precinct  where 
he  may  reside." 

On  March  2,  a  bill  was  introduced  in  the  Senate 
to  "provide  for  taking  the  vote  of  officers  and  soldiers 
of  the  volunteer  service  in  the  army  of  the  United 
States  from  this  State  at  all  legal  elections  for  civil 
officers."  This  bill  was  read  a  first  and  second  time 
and  referred  to  the  Judiciary  Committee. 

The  next  day  the  Republican  minority  of  both 
branches  failed  to  attend,  and  the  Senate  and  House 
were  left  without  a  constitutional  quorum  to  do 
business,  which  was  two-thirds  of  each  House.  On 
March  7,  the  Judiciary  Committee  reported  the  bill 
with  others  which  had  been  referred  to  them,  say- 
ing that  they  had  no  time  to  fully  consider  the  same,. 

1  House  Journal,  1863,  p.  14.  »  Ibid.,  p.  178. 


INDIANA  283 

and  therefore  referred  them  back  without  any  recom- 
mendation as  to  them.1  The  Legislature  continued 
in  session,  however,  until  March  9,  1863,  when  it  ad- 
journed, 52  Democrats  being  present  and  37  Repub- 
licans absent  without  leave.2  The  Senate  adjourned 
with  24  Democrats  present  out  of  a  membership  of 
47.3 

The  Indiana  Legislature  thus  died  without  making 
a  will.  The  minority  left  it  without  a  constitutional 
quorum,  and  instead  of  remaining  in  session  until  a 
constitutional  quorum  could  be  obtained,  it  adjourned 
without  making  the  State  appropriations.  This  action 
by  the  minority  was  taken  because  a  bill  had  been 
introduced  on  February  17  to  constitute  the  Secre- 
tary, Auditor  and  Treasurer  and  the  Attorney  Gen- 
eral, all  anti-war  Democrats,  a  military  Board,  and 
vest  in  them  the  command  of  the  militia,  and  the 
appointment  of  all  officers  in  it,  and  the  custody  of 
the  arms  and  munitions  of  war,  and  also  provided 
that  the  Indiana  Legion,  which  was  then  guarding 
the  border  counties  against  invasion  should  be  dis- 
solved, and  its  arms  delivered  up  into  the  hands  of 
the  four  State  officers.  The  bill  also  provided  that 
commissions  of  officers,  if  not  issued  by  the  Governor 
at  the  direction  of  the  Council,  should  be  superseded 
by  certificates  issued  by  the  four  officers  who  formed 
the  Council.  This  bill  was  plainly  unconstitutional, 
as  taking  away  the  executive  power  which  the  Con- 
stitution lodged  in  the  Governor.  The  bill  was  read 
a  second  time  on  February  17,  and  printed  on  Feb- 
ruary 25.  It  was  considered  in  the  committee  of  the 
w^hole,  and  reported  back  to  the  House.  The  amend- 
ments proposed  by  the  Republicans  were  laid  upon 

1  Senate  Journal,  p.  764.  3  Senate  Journal,  p.  767. 

2  House  Journal,  p.  751. 


284  VOTING   IN  THE   FIELD 

the  table,  and  under  the  operation  of  the  previous 
question  the  bill  was  ordered  engrossed  by  a  vote  of 
52  Republicans  to  17  Democrats.1  The  bolt  of  the 
Republican  minority  was  advised  by  Governor  Mor- 
ton. He  did  not  wish  to  wait  until  the  act  went  into 
effect,  and  litigate  its  validity  before  a  Court  which 
would  probably  uphold  it  if  possible.  If  they  were 
to  Jiave  war  in  the  State  he  preferred  to  have  it  while 
the  weapons  were  in  his  own  hands.  This  was  the 
Legislature  which  was  at  war  with  Governor  Morton. 
Its  records  bristle  with  resolutions  and  counter-reso- 
lutions, memorials  endorsing  the  conduct  of  Governor 
Seymour  in  New  York,  condemning  the  conduct  of 
Governor  Morton,  condemning  the  conduct  of  the 
United  States  government  in  carrying  on  the  "abo- 
lition war,"  condemning  arbitrary  arrests  by  the 
Federal  government,  etc. 

It  is  utterly  impossible  to  bring  any  order  out 
of  the  chaos  of  that  session.  The  parties  fought  each 
other  by  resolutions,  the  first  being  introduced  before 
officers  were  chosen,  declaring  that  the  members 
would  vote  for  no  man  for  office  who  was  not  in 
favor  of  a  vigorous  prosecution  of  the  war  and  who 
was  not  unalterably  opposed  to  the  severance  of 
any  state  or  states  from  the  Union.  This  resolution 
was  referred  to  the  Committee  on  Federal  relations. 
It  was  followed  by  resolutions  against  the  Emanci- 
pation Proclamation  and  demands  that  the  President 
withdraw  it;  by  resolutions  for  peace  conventions  to 
consider  compromises  with  the  South;  by  resolutions 
proposing  armistice  and  cessation  of  hostilities  until 
the  North  and  the  South  could  talk  together.  There 
were  other  resolutions  for  an  investigation  as  to  the 


1  House  Journal,  1863,  p.  625. 


INDIANA  285 

existence  of  disloyal  societies  in  the  State  which 
were  voted  down,  although  a  grand  jury  had  found 
that  such  societies  existed  throughout  the  state;  reso- 
lutions declaring  that  "while  the  President  persists  in 
his  abolition  policy  Indiana  will  never  voluntarily 
contribute  another  man  or  another  dollar  to  be  used 
for  such  wicked,  inhuman  and  unholy  principles." 
Another  resolution  declared  that  the  establishment 
of  West  Virginia  as  a  separate  state  indicated  the 
"purpose  of  rearing  upon  the  ruins  of  the  Union  a 
monarchical  government."  Resolutions  in  favor  of 
national  conventions  of  the  states  to  consider  the  con- 
dition of  the  Union;  resolutions  inviting  the  Legis- 
latures of  Illinois,  Kentucky,  Pennsylvania  and  New 
York  to  join  in  propositions  for  a  compromise;  reso- 
lutions denouncing  the  enlistment  of  negroes  and 
declaring  that  the  President's  scheme  for  compensated 
emancipation  was  a  wicked  defiance  of  the  rights  of 
the  people;  resolutions  declaring  that  the  conscrip- 
tion law  passed  by  Congress  was  unconstitutional 
and  its  enforcement  should  be  resisted;  resolutions 
condemning  the  so-called  arbitrary  arrests,  and  reso- 
lutions calling  upon  Governor  Morton  to  say  whether 
he  approved  of  such  arrests,  and  so  on  ad  infinitum, 
with  speeches  on  the  floor  of  like  inflamed  character. 
The  Republicans  were  not  behind  the  Democrats 
in  this  warfare  of  resolutions  and  talk.  They  pre- 
sented resolution  after  resolution  thanking  Governor 
Morton  for  his  services,  supporting  the  administra- 
tion of  Lincoln,  condemning  the  opposition  to  the  war, 
providing  for  investigations  as  to  disloyal  secret  soci- 
eties, etc.,  etc.  The  main  reason  at  the  bottom  of 
all  this  was  opposition  to  Lincoln's  Emancipation 
Proclamation.  Indiana  sent  more  than  her  quota  of 
troops  to  the  field  and  in  the  main  she  supported 


286  VOTING  IN  THE  FIELD 

them  but  her  people  did  not  believe  in  freeing  the 
negroes.  They  could  not  accept  the  logical  result  of 
the  war,  and  the  Legislature  of  1863  probably  fairly 
represented  the  feeling  of  the  majority  of  the  people 
of  Indiana  at  that  time.  It  took  the  Confederate 
raid  of  General  Morgan  through  the  State  to  shake 
them  out  of  that  condition  of  mind  and  bring  them 
back  to  the  support  of  the  Union  even  if  it  did 
involve  the  destruction  of  slavery. 

The  disloyal  majority  of  the  Legislature  did  not 
believe  that  the  Governor  could  carry  on  the  State 
affairs  without  money  appropriated  by  them.  They 
confidently  expected  he  would  be  forced  to  call  a 
special  session  of  the  Legislature  to  make  appropria- 
tions. But  Morton  was  determined  not  to  give  that 
Legislature  any  opportunity  to  make  the  State  neutral 
in  the  war  or  to  deprive  him  of  his  constitutional 
power  over  the  troops  of  the  State.  He  determined 
to  carry  on  the  State  government  during  the  eighteen 
months  which  must  elapse  before  another  Legislature 
could  meet  without  the  aid  of  the  disloyal  Legislature 
which  had  adjourned.  He  organized  a  Bureau  of 
Finance  to  receive  and  disburse  money.  He  appealed 
to  the  loyal  counties  of  the  State  to  aid  him  and  they 
borrowed  money  and  lent  it  to  him.  He  borrowed 
money  on  his  own  notes;  he  sold  arms  belonging  to 
the  State  to  the  general  government  for  money;  he 
induced  Stanton  and  Lincoln  to  advance  to  him  $250,- 
000  on  account  of  the  State.  He  induced  Lanier  & 
Co.  of  New  York  to  pay  the  interest  on  the  State 
debt  and  in  these  and  various  other  ways  he  realized 
and  disbursed  through  the  Bureau  of  Finance  over 
$1,000,000  for  State  purposes.  The  State  institu- 
tions were  not  closed.  Soldiers  were  cared  for,  the 
expenses  of  new  regiments  were  defrayed,  interest 


INDIANA  287 

was  paid  on  the  State  debt  and  the  machinery  of  the 
government  moved  on  in  this  extraordinary  and  un- 
precedented manner  until  the  Legislature  of  1864 
was  elected  and  met  in  January,  1865. 

In  1865,  there  was  a  Republican  majority  of  18  in 
the  House,  and  the  Senate  of  50  members  was  equally 
divided.  The  Lieutenant-governor,  a  Republican, 
was  President  of  the  Senate  with  a  casting  vote  in 
case  of  a  tie.  In  his  message  to  the  Legislature, 
Governor  Morton  recommended  an  amendment  to  the 
Constitution  to  enable  soldiers  to  vote.  He  said: 

"Under  the  provisions  of  our  Constitution  no  person 
can  vote  except  in  the  precinct  in  which  he  resides.  This 
should  be  so  amended  in  my  opinion  as  to  enable  such  of 
our  citizens  as  are  in  the  military  service  of  the  govern- 
ment, and  who  would  be  entitled  to  a  vote,  if  at  home,  to 
vote  wherever  they  may  be,  in  camp  or  in  field,  under  such 
reasonable  regulations  and  safeguards  as  may  be  prescribed 
by  the  Legislature.  I  can  conceive  of  no  greater  political 
injustice  than  the  exclusion  from  the  right  of  suffrage  of 
those  gallant  men  who  are  absent  from  home  because  they 
are  fighting  the  battles  of  their  country.  I  earnestly  hope 
that  immediate  steps  will  be  taken  to  relieve  our  Constitu- 
tion of  this  injustice,  and  although  it  may  not  be  accom- 
plished in  time  to  become  operative  during  the  war,  it 
should  not  on  that  account  be  neglected."1 

The  speaker  of  the  House,  however,  was  of  the 
opinion  that  soldiers  could  be  authorized  to  vote 
without  amending  the  Constitution,  and  submitted 
a  resolution  on  February  1,  declaring  that  the  "Con- 
stitution of  the  State,  without  amendment,  gives 
ample  power  for  providing  by  law  for  officers  and 
soldiers  of  the  State  in  the  military  service  of  the 
United  States  (except  those  in  the  regular  service 

1  Brevier,  Legislative  Reports,  1865,  p.  21. 


288  VOTING  IN  THE  FIELD 

of  the  United  States,  or  its  allies)  to  vote  at  all 
elections."  1 

On  the  same  day,  a  bill  was  introduced  and  referred 
to  the  Judiciary  Committee  to  ''provide  for  the  voting 
of  electors  of  the  State  of  Indiana  absent  therefrom, 
and  in  the  military  or  naval  service  of  the  United 
States."  2 

On  February  22,  the  bill  was  reported  by  a  ma- 
jority of  the  Judiciary  Committee,  amended  into  a 
new  bill,  and  its  passage  recommended.3 

It  was  afterwards  made  a  special  order  for  Feb- 
ruary 24,  when  it  was  taken  up.4  The  Democratic 
leader  of  the  House  opposed  it  upon  the  ground  that 
it  was  unconstitutional.  He  referred  to  the  decisions 
in  Connecticut,  in  New  Hampshire,  in  Pennsylvania, 
and  in  Vermont.  He  also  said,  the  Supreme  Court 
of  Michigan  had  then  recently  decided  that  the  law 
of  that  State  for  soldiers'  voting  was  unconstitutional, 
and  he  gave  special  weight  to  the  fact  that  "a  good 
lawyer  —  the  embodiment,  head  and  front  of  the 
Republican  party,  His  Excellency,  Governor  O.  P. 
Morton,  had  said  in  his  message  that  under  the 
Constitution  the  voter  must  vote  in  his  own  precinct. 
Considering  this  man's  position,  his  learning  and 
apparent  devotion  to  the  interests  of  men  in  the  army, 
his  opinion  is  entitled  to  the  respect  of  the  House 
in  the  consideration  of  the  bill."  To  this  argument, 
Mr.  Pettit,  the  Republican  Speaker,  replied,  saying 
that  if  the  soldier  had  the  right  to  vote  the  Legis- 
lature could  create  the  method,  that  the  Constitution 
did  not  tie  the  hands  of  the  Legislature  so  that  it 
could  not  do  right,  and  also  that  he  was  very  much 
at  ease  with  regard  to  every  legal  objection  raised  to 

1  House  Journal,  1865,  p.  250.  *  Ibid.,  p.  325. 

2  House  Journal,  p.  251.  4   Ibid.,  p.  544. 


INDIANA  289 

the  bill,  because  he  knew  the  act  would  be  subject 
to  the  adjudication  of  the  Courts.  There  was  still 
further  debate,  Mr.  Dunham,  a  prominent  Democrat, 
saying  that  "it  would  be  found  in  history  that  when 
republics  have  lost  their  liberties  it  was  when  the 
ballot  box  was  seized  by  soldiers  in  the  field.  .  .  . 
There  was  no  freedom  of  speech  in  the  armies.  It 
was  contracted,  curtailed  and  suppressed  by  the 
soldier-straps.  Soldiers  cannot  vote  freely  and  intel- 
ligently." 

Sundry  amendments  of  the  bill  were  made,  and 
some  amendments  rejected.  A  member  of  the  mi- 
nority proposed  to  amend  by  uniting  the  Attorney 
General,  the  Auditor,  the  Treasurer,  and  the  Secre- 
tary of  State  with  the  Governor,  in  the  distribution 
of  the  ballots  to  the  soldier  voters.  This  amendment 
was  rejected,  —  yeas  35,  nays  48. 1  And  then  there 
was  extended  debate  and  a  call  of  the  House,  and 
finally  by  use  of  the  previous  question  the  bill  was 
passed  by  a  vote  of  51  Republicans  to  21  Demo- 
crats. 

On  February  25,  the  President  of  the  Senate  was 
advised  of  the  passage  of  the  soldiers'  voting  bill,  by 
the  House.2  The  Senate  adjourned  on  March  6,  but 
apparently  nothing  was  done  with  the  soldiers'  voting 
bill  in  the  meantime,  probably  because  the  Senate 
was  equally  divided,  there  being  25  Republican  and 
25  Democratic  members.2  At  the  special  session, 
November  13,  1865,  the  same  condition  of  affairs 
continued,  but  the  Senate  did  nothing  with  regard 
to  the  bill. 

And  thus  ended  the  attempt  to  pass  a  soldiers' 
voting  bill  in  Indiana. 


1  House  Journal,  p.  596,  599.  2  Senate  Journal,  p.  445. 


290  VOTING  IN  THE  FIELD 

The  60,000  soldiers  from  Indiana  whom  the  Demo- 
cratic Legislature  of  1863  would  not  permit  to  vote 
in  the  field,  protested  generally,  and  the  officers  and 
soldiers  of  22  regiments  and  four  batteries,  and  the 
soldiers  at  Corinth  in  Arkansas  and  in  the  Army  of 
the  Cumberland,  sent  a  remonstrance  to  the  Legis- 
lature, in  which  they  said:  "Beware  of  the  terrible 
retribution  that  is  falling  upon  your  coadjutors  at 
the  South,  which,  as  your  crime  is  ten-fold  blacker 
will  swiftly  smite  you  with  ten-fold  more  horror, 
should  you  persist  in  your  damnable  deeds  of 
treason."  1 

Another  body  of  troops  sent  a  memorial  to  the 
Legislature  protesting  against  its  unpatriotic  conduct. 
They  said  that  the  "officers  and  soldiers  cheerfully 
submitted  to  the  policy  which  denied  them  a  voice 
in  the  election;  that  they  approved  the  wisdom  which 
secured  the  civil  from  the  influence  of  the  military 
power,  but  that  they  felt  compelled  to  petition  the 
Legislature  to  refrain  from  political  discussions,  to 
disapprove  a  compromise,  to  give  the  war  a  hearty 
support,  and  especially  to  sustain  and  encourage 
Governor  Morton."2 

Another  regiment  declared  that  they  desired  the 
right  to  vote.  They  said:  "We  hold  it  to  be  right 
and  proper  that  volunteers  should  vote  for  every  civil 
officer,  at  all  legal  elections  in  our  State,  and  that 
the  language  of  the  Constitution  providing  for  a  vote 
in  the  township  in  which  the  voter  resides,  does  not 
apply  to  a  state  of  civil  war,  when,  necessarily,  one- 
half  of  the  voters  are  abroad  from  their  residences, 
and  unless  allowed  to  vote  in  camp,  will  thus  be 


1  Historic  Indiana,  Leavering,  p.  306. 
*  The  Soldier  of  Indiana,  Vol.  2,  p.  382. 


INDIANA  291 

deprived  of  the  priceless  and  inalienable  right  of  self- 
government. 

"In  this  great  emergency  in  our  country's  life 
we  demand  the  right  to  vote  as  well  as  fight,  and  call 
upon  our  rulers  at  home  to  place  this  inestimable 
prize  at  once  within  our  reach.  We  do  not  cease  to 
be  citizens  because  we  are  soldiers.  We  have  not  laid 
down  the  right  to  rule  because  we  have  sworn  to 
obey."  l 

In  the  October  elections  of  1864,  as  soldiers  could 
not  vote  in  the  field,  special  efforts  were  made  to 
have  as  many  of  them  furloughed  and  sent  home  to 
vote  as  possible.  Governor  Morton  made  special 
application  for  that  purpose.  He  addressed  a  com- 
munication to  Lincoln  upon  the  matter  in  which  he 
said: 

"Indiana  is  one  of  the  few  States  in  which  the  soldiers 
are  disfranchised.  We  merely  suggest  that  solcfiers  who 
are  unfit  for  service  should  be  sent  to  hospitals  in  Indiana, 
so  that  they  may  vote,  and  while  we  do  not  urge  that  any 
troops  be  withdrawn  from  where  they  are  needed,  we  sug- 
gest a  mere  request  to  the  commanding  General  upon  the 
matter." 

As  a  result,  Lincoln  wrote  Sherman: 

"The  State  election  of  Indiana  occurs  on  the  llth  of 
October  and  the  loss  of  it,  to  the  friends  of  the  Govern- 
ment, will  go  far  toward  losing  the  whole  Union  cause. 
The  bad  effect  upon  the  November  election  and  especially 
the  giving  the  State  government  to  those  who  will  oppose 
the  war  in  every  possible  way,  are  too  much  to  risk,  if  it 
can  possibly  be  avoided. 

The  draft  proceeds,  notwithstanding  its  strong  tendency 
to  lose  us  the  State.  Indiana  is  the  only  important  State 


1  The  Soldier  of  Indiana.  Vol.  2,  p.  384. 


292  VOTING  IN  THE  FIELD 

voting  in  October  whose  soldiers  cannot  vote  in  the  field. 
Anything  that  you  can  safely  do  to  let  these  soldiers  or 
any  part  of  them  go  home  and  vote  at  the  State  election 
will  be  greatly  in  point.  They  need  not  remain  for  the 
Presidential  election,  but  may  return  to  you  at  once.  This 
is  in  no  sense  an  order,  but  is  merely  intended  to  impress 
you  with  the  importance,  to  the  army  itself,  of  your  doing 
all  you  safely  can,  yourself  being  the  judge  of  what  you 
can  safely  do."1 

This  letter  was  sent  by  special  messenger. 

Many  soldiers  came  home,  but  the  great  bulk  of 
them  stayed  in  the  field  and  did  not  vote.1 

Apparently  another  application  was  made  by  Mor- 
ton to  permit  soldiers  to  come  home  to  vote  at  the 
November  election  in  Indiana.  To  this  Lincoln 
replied  by  a  telegram,  in  which  he  said: 

"In  my  letter  borne  by  Mr.  Mitchell  to  General  Sher- 
man I  said  that  any  soldiers  he  could  spare  for  October 
need  not  remain  for  November.  I  therefore  cannot  press 
the  General  on  this  point.  All  that  the  Secretary  of 
War  and  General  Sherman  feel  they  can  safely  do  I  how- 
ever shall  be  glad  of.  Bravo  for  Indiana  and  for  yourself 
personally." 2 


1  Foulke's  Morton,  Vol.  1,  pp.  307  et  seq. 

2  Complete  Works  of  Abraham  Lincoln,  Vol.  10,  pp.  225,  242. 


CHAPTER  XXVIII 

MASSACHUSETTS 

IN  Massachusetts  the  Constitution  fixes  the  place 
where  votes  shall  be  cast  for  State  officers,  so  that 
the  Legislature  cannot  authorize  a  vote  for  them 
in  any  place  other  than  that  provided  by  the 
Constitution.1  An  amendment  was  therefore  neces- 
sary to  enable  soldiers  to  vote  in  the  field  except  for 
presidential  electors  and  Congressmen.  For  some 
reason  there  does  not  appear  to  have  been  in  Massa- 
chusetts as  much  interest  in  the  matter  of  soldiers' 
voting  in  the  field  as  there  was  in  the  other  States. 
The  State  had  sent  into  the  service  up  to  1862  nearly 
50,000  men,  and  by  October  17,  1863,  75,608  men  from 
Massachusetts  had  entered  the  Army.  About  one  in 
three  of  her  enrolled  militia  went  into  the  field  during 
the  war.2  A  very  large  proportion  of  these  men  were 
voters  at  home,  but  nobody  seems  to  have  paid  any 
attention  to  the  matter  of  giving  them  a  vote  in  the 
field.  Even  Governor  Andrew,  the  soldier's  friend, 
makes  no  reference  to  this  matter  in  his  elaborate 
and  rhetorical  messages  to  the  Legislature.  Nothing 
was  done  about  it  until  1864  when  petitions  were  re- 
ceived by  the  Legislature  for  an  amendment  of  the 
Constitution  to  secure  the  elective  franchise  to  voters 
of  the  Commonwealth  absent  therefrom  in  the  military 
and  naval  service  of  the  United  States.  These  w^ere 
referred  to  the  Military  Committee  of  the  House.3 

1  Map,  Const.  Art.  2,.  Ch.  1;   Art.  8,  Ch.  2. 

1  Governor's  Address,  Mass.  Laws,  1864,  pp.  369  et  seq. 

3  House  Journal,  1864,  p.  279. 


294  VOTING  IN  THE  FIELD 

To  amend  the  Constitution  required  that  the 
amendment  should  be  agreed  to  by  a  majority  of  the 
Senate  and  two-thirds  of  the  House  present  and  vot- 
ing thereon,  that  such  amendment  should  be  entered 
on  the  Journal  of  the  two  Houses  with  the  yeas  and 
nays  taken  thereon,  and  then  be  referred  to  the  Gen- 
eral Court  then  next  to  be  chosen,  and  be  published. 
And  then,  if  the  next  General  Court  should  agree  to 
the  amendment  by  a  majority  of  the  senators  and 
two-thirds  of  the  members  of  the  House  present  and 
voting  thereon,  the  amendment  should  be  submitted 
to  the  people,  and  if  approved  by  a  majority  of  the 
qualified  voters  voting  thereon  at  meetings  held  for 
that  purpose,  it  should  become  a  part  of  the  Con- 
stitution. 

On  April  6,  1864,  the  Committee  reported  a 
resolve  for  an  amendment  to  the  Constitution,  which 
took  its  several  readings,  and  was  on  April  13th 
passed  by  a  vote  of  140  to  3.  It  read  as  follows: 

"Any  qualified  voter  of  this  Commonwealth  who  shall 
be  absent  therefrom  in  the  actual  military  and  naval 
service  of  the  United  States  on  the  day  appointed  by  the 
law  for  a  general  election  or  on  the  day  appointed  by  law 
for  a  special  election,  shall  be  entitled  at  such  times  to 
vote  as  fully  as  if  present  at  his  place  of  residence." 

As  the  Constitution  then  contained  a  provision  for 
the  payment  of  a  tax  as  a  prerequisite  to  voting  there 
should  have  been  also  an  amendment  to  allow  the 
Legislature  to  provide  for  this,  or  the  votes  would 
probably  have  many  of  them  been  lost  as  was  the 
case  in  Rhode  Island.  Soldiers  on  active  service  were 
not  able  to  pay  poll  taxes  at  home.  But  apparently 
nobody  thought  of  this. 

The  resolve  was  sent  to  the  Senate,  where  it  was 


MASSACHUSETTS  295 

referred    to    the   Judiciary    Committee    on   April    15, 
1864.1 

On  May  4,  the  Committee  reported  it  in  a  new 
draft  which  read  as  follows: 

"The  General  Court  shall  have  power  to  provide  by 
law  the  manner  in  which  any  qualified  voter  of  this  Com- 
monwealth who  is  absent  in  the  time  of  war  in  the  military 
or  naval  service  of  the  United  States  may  vote  in  the  choice 
of  any  officers  that  may  be  voted  for  at  a  general  election." 

This  resolve  was  passed  on  May  6  by  a  yea  and 
nay  vote  of  26  to  1,  and  went  back  to  the  House 
where,  on  May  7,  it  was  referred  to  the  Judiciary 
Committee.  On  May  10,  the  resolve  was  reported 
favorably  from  the  Committee,  and  on  May  11,  it 
was  passed  by  a  yea  and  nay  vote  of  163  to  4. 

In  1865,  the  resolve  came  before  the  Legislature 
for  a  second  adoption,  as  required  by  the  Constitu- 
tion. Governor  Andrew  in  his  message  referred  to  it 
and  said:  "I  recommend  its  early  adoption  by  the 
General  Court,  and  that  a  day  be  fixed  for  its  ratifica- 
tion by  the  people  sufficiently  early  for  our  soldiers 
to  vote  at  the  next  autumnal  election."  2 

The  provision  of  the  Constitution  for  its  amend- 
ment was  adopted  in  1821,  and  the  word  "pub- 
lished" in  it  meant  published  by  the  General  Court 
or  by  its  authority.  With  the  passage  of  the  resolve 
in  1864  the  first  step  was  taken,  but  the  Consti- 
tution required  it  to  be  published.  Apparently 
everybody  supposed  it  was  published  except  the  two 
officers  whose  duty  it  was  to  see  that  it  was  pub- 
lished. That  is,  the  Clerk  of  the  House  whose 
duty  it  was  to  transmit  an  attested  copy  of  the 
resolve  to  the  Secretary  of  State,  and  the  Secretary 

1  Senate  Journal,  1864,  pp.  530,  649.  *  Laws  of  1865,  pp.  695,  733. 


296  VOTING  IN  THE  FIELD 

of  State  whose  duty  it  was  to  publish  the  resolve  in 
the  "Blue  Book'*  or  in  the  newspapers,  as  provided 
by  the  statute.  The  Secretary  was  Oliver  Warner, 
and  the  Clerk  of  the  House  was  W.  F.  Robinson,  better 
known  as  "Warrington,"  the  caustic  correspondent 
of  the  "Springfield  Republican"  and  a  man  of  ex- 
cellent ability.  In  the  message  of  Governor  Andrew 
in  1865,  as  before  stated  he  called  attention  to  the 
fact  that  the  resolve  had  been  passed  in  1864  and 
suggested  the  importance  of  passing  it  speedily  in 
1865  so  that  it  might  be  submitted  to  the  people, 
and  if  ratified  might  be  made  effective  for  voting 
at  the  autumn  election. 

The  Judiciary  Committee  of  the  House  in  due 
course  called  for  the  resolve  and  for  proof  of  the 
fact  of  its  publication,  and  then  discovered  that  it 
had  not  been  published. 

The  judiciary  committee  reported  that  the  Resolve 
amending  the  Constitution  was  passed  and  attested  by 
the  two  clerks,  but  that  it  had  never  been  published* 
and  the  Secretary  of  State  WTote  them  a  letter  saying 
"that  no  publication  of  the  amendment  to  the  Con- 
stitution passed  for  the  first  time  by  the  Legislature 
last  year  has  been  made."  The  Committee  said 
that  they  did  not  deem  it  within  the  line  of  their 
duty  to  ascertain  why  no  publication  had  been  made 
but  the  fact  was  in  their  minds  conclusive  to  prevent 
any  final  action  on  the  part  of  this  legislature  in  the 
matter  of  the  amendment,  and  they  saw  no  other 
way  than  to  propose  the  amendment  and  agree  to  it 
in  the  same  manner  and  form  as  though  it  had  never 
been  proposed  and  agreed  to  before.  Therefore,  they 
recommended  the  resolve.1 


1  House  Document  No.  77,  1865,  of  February  17. 


MASSACHUSETTS  297 

There  were  then  three  methods  of  publication  pre- 
scribed by  law.  First,  all  the  Acts  and  Resolves, 
together  with  the  Governor's  Address  and  Messages, 
the  Constitution  of  the  Commonwealth,  the  list  of 
names  changed  and  a  list  of  the  officers  of  the 
civil  government  was  to  be  published  in  what  was 
commonly  known  as  the  "Blue  Book."  Second,  an 
edition  containing  only  the  general  laws  and  Resolves 
was  published  in  pamphlet  form  at  the  close  of  each 
session.  Third,  the  general  laws  and  such  "other 
official  information  intended  for  the  public"  were  to 
be  published  in  such  newspapers  as  the  Secretary  of 
State  might  select.1 

We  will  now  let  the  parties  to  this  "comedy  of 
errors"  tell  their  own  story  in  their  own  way. 

Oliver  Warner,  Secretary  of  State  on  March  1, 
1865,  addressed  a  communication  to  the  Speaker  of 
the  House  in  which  he  said  that  his  attention  had 
been  called  to  a  report  of  the  Judiciary  Committee, 
House  Document  No.  77,  and  that  he  had  addressed 
a  letter  to  the  Attorney  General  asking  his  opinion 
as  to  the  duty  of  the  Secretary  in  publishing  the 
Resolve.  He  then  said  that  "no  official  notice  of  the 
passage  of  the  Resolve  had  ever  reached  this  office 
and  no  way  is  provided  under  which  it  may  be  ren- 
dered certain  that  the  passage  of  certain  Resolves 
shall  be  certified  to  this  Department." 

The  opinion  of  the  Attorney  General,  Chester  L. 
Read  under  date  of  February  28  was  that  under  ex- 
isting legislation  it  was  not  the  duty  of  the  Secre- 
tary to  publish  a  Resolve  to  amend  the  Constitution 
either  with  the  Laws  and  Resolves  "or  otherwise." 
He  also  stated  the  remarkable  fact  that  the  Con- 


1  Sec.  4,  Ch.  3,  Gen.  Stat. 


298 

stitutional  Amendments  which  were  adopted  in  1831, 
1833,  1836,  1850,  1855,  1857,  and  1859  were  not  pub- 
lished by  the  Secretary  of  State,  except  in  1857 
when  the  Legislature  by  special  Resolve,  Chapter  97 
of  the  Resolves  of  1857,  directed  the  Secretary  to 
publish  it. 

Then  appeared  upon  the  scene  W.  S.  Robinson, 
Clerk  of  the  House  who  also  addressed  a  communica- 
tion to  the  Speaker  as  follows: 

"My  attention  has  been  directed  to  a  communica- 
tion from  the  Secretary  of  the  Commonwealth,  presented 
to  the  House  of  Representatives  on  the  first  instant, 
on  the  subject  of  the  alleged  failure  on  the  part  of 
the  secretary's  department  to  publish  the  'Resolve  pro- 
viding for  an  amendment  of  the  Constitution  to  secure 
the  election  franchise  to  the  voters  of  the  Common- 
wealth, absent  therefrom  in  the  military  and  naval  serv- 
ice of  the  United  States,'  proposed  by  the  Legislature  of 
1864,  in  which  communication  I  find  it  state  that  'no 
official  notice  of  the  Resolve  of  the  legislature  of  1864 
ever  reached  this  office.'  I  understand  the  sole  purpose 
of  the  secretary's  communication  to  the  attorney  general, 
and  of  that  officer's  reply,  is  to  show  to  the  legislature 
that  it  was  not  the  duty  of  the  Secretary  to  publish  the 
Resolve.  In  this  point  of  view,  it  would  seem  to  be  wholly 
unimportant  whether  official  notice  of  its  passage  was  or 
was  not  received.  The  remark  I  have  quoted,  though 
doubtless  not  intended  as  an  imputation  of  neglect  of 
duty  upon  the  legislature,  or  any  one  of  its  officers,  is 
liable  to  that  construction,  and  I  therefore  feel  compelled, 
in  justice  to  other  officers  of  the  legislature  as  well  as  to 
myself,  to  make  a  statement  of  the  facts  in  the  case. 

"The  'Resolve'  and  accompanying  article  of  Amend- 
ment passed  both  branches  of  the  legislature  of  1864,  and 
at  the  close  of  the  session  remained  in  my  custody,  the 
House  having  been  the  last  to  act  upon  it.  Before  the 


MASSACHUSETTS  299 

'Blue  Book'  went  to  press  I  took  pains  to  call  the  atten- 
tion of  the  secretary's  department  to  the  fact  that  the 
Resolve  contained  a  requirement  for  its  own  publication; 
and  at  the  same  time  furnished  a  correct  and  attested 
copy  of  the  Resolve  and  Article  to  the  second  clerk  of 
the  Department,  who,  as  I  understood,  had  charge  of 
the  publication  of  the  work.  This  official  and  attested 
copy  was  returned  to  me  by  one  of  the  clerks  in  the  de- 
partment, with  the  message  that  it  could  not  be  published 
in  the  'Blue  Book'  in  that  form;  and  the  book  went  to 
press  without  it.  No  request  was  made  for  the  original 
document,  or  for  the  opportunity  to  compare  the  copy 
with  it;  and  at  no  time,  either  before  or  after  the  'Blue 
Book'  was  issued,  was  any  request  made  for  me  to  fur- 
nish a  copy  for  publication  in  the  'Daily  Advertiser,' 
which  is  the  newspaper  in  which,  by  virtue  of  Sect.  4  of 
Chap.  3  of  the  General  Statutes,  the  secretary  publishes 
'the  general  laws,  and  other  official  information  intended 
for  the  public.'  Indeed,  as  I  understand  it  to  be  the 
opinion  of  the  secretary  and  attorney  general  that  there 
is  no  provision  of  law  making  it  the  duty  of  the  secretary 
to  publish  these  Resolves  and  Articles  of  Amendment, 
in  any  form,  or  through  any  medium,  it  was  not  probably 
considered  very  important  in*  what  shape  they  came  to 
the  department,  or  whether  or  not  they  came  at  all. 

"It  remains  to  be  considered  whether  the  duty  of 
publication  is  one  which  was  neglected  by  any  officer  of 
the  legislature.  I  am  not  aware  of  any  statute,  custom, 
or  tradition,  which  makes  it  the  duty  of  the  clerk  of  either 
branch  to  publish  any  of  the  Acts  or  Resolves  of  the  legis- 
lature. By  a  special  Resolve  in  the  year  1857,  the  amend- 
ment of  the  Constitution  proposed  in  that  year  was  ordered 
to  be  published  by  the  Secretary.  In  1862  (and  this  fact 
seems  to  have  been  overlooked  by  the  attorney  general), 
the  Resolve  proposed  in  that  year  was  published  in  the 
'Blue  Book,'  a  copy  thereof  having  been  furnished  to  the 
secretary's  department  for  that  purpose.  The  language 


300  VOTING  IN  THE  FIELD 

of  sect.  1,  Chap.  3  of  the  General  Statutes,  seemed  to  me, 
unlearned  in  the  niceties  of  the  law,  but  sufficiently  famil- 
iar with  'Resolves'  to  know  them  by  sight,  to  cover  this 
precise  case.  This  section  reads  as  follows:  — 

"'The  Secretary  of  the  Commonwealth,  at  the  close 
of  each  session  of  the  general  court,  shall  collate  and  cause 
to  be  printed  in  one  volume,  in  style  and  arrangement  as 
heretofore,  all  the  acts  and  resolves  passed  during  such 
session  with  the  governor's  address  and  messages,  the 
constitution  of  the  Commonwealth,  a  list  of  names  changed 
and  returned  during  the  preceding  year  by  the  probate 
courts,  and  a  list  of  the  officers  of  the  civil  government, 
with  an  index.' 

"It  will  be  observed  that  the  messages  of  the  governor 
are  published  by  authority  of  this  section.  I  have  never 
yet  furnished  to  the  secretary's  department  an  attested 
copy  of  any  one  of  the  messages  which  have  been  communi- 
cated to  the  House  of  Representatives,  and  have  never 
been  asked  to  furnish  such  a  copy.  The  secretary's  de- 
partment, so  far  as  I  know,  has  been  satisfied  with  such 
a  copy  as  it  could  obtain  at  the  document  room,  or  at  my 
office,  without  any  attestation  whatever,  and  I  have  no 
reason  to  suppose  that  any  messages  have  ever  been  printed 
incorrectly,  or  that  any  evil  has  resulted  from  this  com- 
mon sense  method  of  doing  business.  I  certainly  had  a 
right  to  suppose  that  an  attested  copy  of  the  Resolve  and 
Article  of  amendment  would  be  considered  as  authentic  as 
one  of  the  messages  obtained  in  the  way  I  have  described. 

"Even  if  I  had  supposed  that  any  doubt  could  exist 
as  to  the  legal  meaning  of  this  section,  I  might,  and  proba- 
bly should  have  fallen  back  upon  Section  4th,  Chapter 
3d,  of  the  General  Statutes,  which  is  as  follows:  — 

:'The  secretary  shall  publish  the  general  laws  and  other 
official  information  intended  for  the  public,  in  such  news- 
paper in  the  Commonwealth  as  he  may  select,  but  the 
annual  expense  thereof  shall  not  exceed  three  hundred 
dollars.' 


MASSACHUSETTS  301 

"And  I  should  not  have  supposed  that  any  construc- 
tion could  be  placed  upon  this,  which  would  have  excluded 
information  so  clearly  intended  for  the  public  as  was  the 
proposed  amendment.  If  any  apology  is  needed  for  my 
attempt,  in  the  absence  of  law  or  custom  requiring  the 
legislature  to  publish,  to  have  provisions  of  the  Constitu- 
tion and  of  the  Resolve  requiring  publication  carried  out, 
it  may  be  found  in  my  construction  of  the  clauses  which 
I  have  quoted. 

"I  deem  it  my  duty  also  to  draw  attention  to  the 
remark  of  the  secretary,  that  'no  way  is  provided  by  which 
it  may  be  rendered  certain  that  the  passage  of  future 
resolves  shall  be  certified  to  this  department,'  and  also 
the  remark  of  the  attorney  general  in  the  accompanying 
opinion,  that,  'as  a  matter  of  fact  it  seems  that  there  is 
no  way  provided  in  which  the  secretary  shall  obtain  an 
authentic  copy  of  any  such  proposed  amendment.'  Doubt- 
less there  is  no  way  provided  except  that  which  the  legis- 
lature provides  for  the  performance  of  other  clerical  duties, 
that  is  to  say,  by  the  election  of  clerks  in  whom  it  has 
confidence,  and  whom  it  places  under  obligation  to  per- 
form their  duties  to  the  best  of  their  ability.  In  1862  the 
clerks  of  the  Senate  and  House  succeeded  in  procuring 
the  publication  of  the  amendment  of  the  constitution  pro- 
posed by  the  legislature  of  that  year,  in  the  'Blue  Book/ 
and  the  clerk  of  the  House  did  what  he  thought  his  best 
to  procure  the  insertion  of  the  amendment  of  1864,  in  the 
'Blue  Book'  of  that  year."1 

It  thus  appears  that  Oliver  Warner,  who  was 
Secretary  of  State,  had  published  a  constitutional 
amendment  in  the  "Blue  Book"  of  1862,  and  there 
is  no  reason  which  can  be  now  ascertained  why  the 
amendment  of  1864  was  not  published  by  him  in 
the  same  way.  But  it  was  not,  and  this  important 
amendment,  which  had  passed  both  Houses,  by  a 


1  House  Documents,  1865.  No.  111. 


302  VOTING  IN  THE  FIELD 

substantially  unanimous  vote  in  1864,  was  put  back 
one  year  by  the  negligence  of  the  Secretary  of  State. 

In  1866,  the  resolve  which  was  passed  in  1865, 
as  it  had  been  in  1864,  was  referred  to  the  Committee 
on  the  Judiciary.  On  January  17th  the  Committee 
reported  the  resolve  with  a  new  draft  of  the  prelimi- 
nary resolve,  and  it  was  ordered  to  a  second  reading. 
On  January  23,  Mr.  Brown  of  Taunton  moved  to 
recommit  the  resolve  to  the  Committee  to  report 
"whether  the  General  Court  has  not  full  power  under 
the  Constitution  to  prescribe  by  law  the  manner  in 
which  the  legal  voters  of  this  State  absent  therefrom 
may  vote  for  presidential  electors  and  for  representa- 
tives in  Congress."  This  motion  was  rejected,  and  a 
motion  was  made  to  amend  the  resolve  by  striking 
out  the  words  "or  naval,"  which  was  also  rejected. 
The  resolve  was  then  passed,  yeas,  166,  nays,  24, 
and  went  to  the  Senate.1 

In  the  Senate  the  resolve  was  referred  to  the 
Committee  on  the  Judiciary  on  January  25.  On  Jan- 
uary 29  the  Committee  reported  asking  to  be  dis- 
charged from  the  further  consideration  of  the  resolve. 
On  January  30,  the  resolve  was  read  a  second  time. 
On  January  31  a  substitute  was  proposed,  which 
was  read,  and  the  whole  subject  was  laid  on  the  table, 
and  the  substitute  ordered  to  be  printed.  On  Feb- 
ruary 1,  2  and  7,  the  resolve  was  postponed  from 
time  to  time.2 

On  February  8  the  resolve  was  considered,  and  the 
substitute  proposed  therefor  was  adopted  and  ordered 
to  a  second  reading.  A  motion  to  reconsider  the  vote 
whereby  the  substitute  was  ordered  to  a  second  read- 
ing was  made,  and  on  February  9  the  motion  was 

1  House  Journal,  1866,  pp.  34,  38,  47,  53,  54. 
1  Senate  Journal.  1866.  pp.  107,  141,  160-67-94. 


MASSACHUSETTS  303 

rejected  by  a  vote  of  14  yeas  and  21  nays.  The 
resolve  was  postponed  from  time  to  time  on  Febru- 
ary 12,  14,  15,  until  on  February  19  the  substitute 
was  passed  by  a  yea  and  nay  vote  of  22  to  9.1 

The  substitute  resolve  adopted  by  the  Senate 
narrowed  the  effect  of  the  amendment  which  had  been 
adopted  by  both  Houses  in  1864,  in  1865,  and  by 
the  House  in  1866;  by  restricting  the  right  to  vote 
to  the  territory  of  the  United  States.  It  read: 

"The  General  Court  shall  have  power  to  provide  by 
law  the  manner  in  which  any  qualified  voter  of  this  Com- 
monwealth who  is  absent  in  time  of  war  in  military  or 
naval  service  of  the  United  States  and  within  the  territory 
thereof  may  vote  in  the  choice  of  any  national  or  state 
officers  that  may  be  voted  for  at  any  general  election." 

This  qualification  of  the  right  to  vote  given  by 
the  substitute  resolve  made  a  new  amendment. 
This  new  amendment  must  pass  two  legislatures 
before  it  could  be  submitted  to  the  people.  All 
that  had  been  done  up  to  that  time  was  thus 
made  useless.  If  it  was  accepted  by  the  House, 
the  Constitution  could  not  be  amended  until  the 
autumn  of  1867. 

The  substitute  resolve  was  received  by  the  House 
on  February  21,  and  placed  in  the  orders  of  the  day. 
On  February  27  the  House  voted  not  to  concur  with 
the  Senate  in  the  new  draft  of  the  resolve,  and  sent 
the  resolve  back  to  the  Senate.2  On  February  28,  the 
Senate  voted  to  insist  upon  its  draft  of  the  resolve 
by  a  yea  and  nay  vote  of  23  to  8,  and  sent  the  resolve 
back  to  the  House.  The  proper  course  would  seem 
to  have  been  to  ask  for  a  committee  of  conference, 


1  Senate  Journal,  1866,  pp.  200,  207,  307. 

2  House  Journal,  1866,  pp.  157,  167. 


304  VOTING  IN  THE   FIELD 

but  nothing  of  the  kind  was  done,  and  on  March  1st, 
the  House,  without  asking  for  a  committee  of  confer- 
ence, voted  to  insist  on  its  non-concurrence  with  the 
Senate,  and  the  resolve,  both  in  the  new  and  the  old 
draft,  was  returned  to  the  Senate; 1  and  on  March  2nd, 
by  the  Senate  laid  on  the  table,  where  it  now  quietly 
reposes.2 

And  thus  the  attempt  of  Massachusetts  to  give  its 
soldiers  the  right  to  vote  in  the  field  failed,  not  because 
the  State  did  not  desire  such  legislation,  but  because 
its  officials  and  legislature  did  not  do  their  duty. 

It  is  difficult  to  resist  the  conclusion  that  nobody 
cared  very  much  for  the  adoption  of  the  amendment 
at  that  time.  The  war  was  over,  and  there  appeared 
to  be  no  special  need  of  it. 

All  that  resulted  in  Massachusetts  from  the  agi- 
tation about  the  soldiers  voting  in  the  field  was  an  act 
providing  that  all  constitutional  amendments  should 
be  published  in  the  "Blue  Book,"  an  act  which  was 
apparently  entirely  unnecessary.3 

1  House  Journal,  1866,  p.  174. 
1  Senate  Journal,  1866,  323. 
*  Acts  of  1865,  Ch.  156. 


CHAPTER  XXIX 

OREGON 

OREGON  became  a  State  in  1859.  It  was  more 
than  1,200  miles  from  the  nearest  Eastern  State, 
and  about  the  same  distance  from  California,  the  only 
other  Pacific  State.  There  were  no  railroads  connect- 
ing it  with  the  East  or  with  California.  The  only  route 
from  Oregon  eastward  was  the  overland  trail,  a  distance 
of  about  2,700  miles,  which  occupied  about  a  month. 

In  1860  the  State  had  a  population  of  52,465,  and 
cast  a  vote  of  14,751,  of  which  Lincoln  received  5,334, 
Breckinridge  5,074,  Douglass  4,136,  and  Bell  197. 
Lincoln's  plurality  was  only  260,  and  he  received  4,073 
votes  less  than  all  the  others. 

In  1862  a  Union  Democrat  was  chosen  Governor 
by  a  vote  of  7,039  against  3,450  for  a  straight  Demo- 
crat, the  total  vote  being  only  10,489.  It  raised  for 
the  Union  Army  1,810  soldiers,  who  were  all  employed 
in  Oregon  and  on  the  Pacific  coast.  It  was  so  far 
distant  from  the  other  Northern  States  that  it  had  no 
real  share  in  the  Civil  War,  and  nothing  was  done  or 
attempted  to  be  done  with  regard  to  giving  the  soldiers 
the  vote  in  the  field. 


CHAPTER  XXX 

REVIEW  AND  SUMMARY 

UPON  a  review  of  this  legislation  one  is  im- 
pressed with  the  fact  that  the  soldiers'  voting 
bills  were  uniformly  supported  by  the  Republicans 
and  uniformly  opposed  by  the  Democrats.  It  is 
difficult  for  us  to  find  why  there  should  have  been 
any  opposition  to  legislation  which  prevented  a  man 
from  being  disfranchised  merely  because  he  had  vol- 
unteered, either  in  the  Confederate  or  in  the  Northern 
army.  He  was  still  a  voter  although  he  had  become 
a  soldier,  and  it  would  seem  that  he  ought  to  have 
been  permitted  to  vote  in  support  of  the  government 
for  which  he  fought. 

And  yet  no  soldiers'  voting  bill,  or  constitutional 
amendment  permitting  soldiers  to  vote  in  the  field, 
was  ever  passed  by  a  legislature  which  had  a  Demo- 
cratic majority.  The  Democrats  constantly  and  per- 
sistently opposed  any  legislation  to  give  the  soldiers 
a  right  to  vote  in  the  field. 

In  Illinois,  the  Democratic  majority  in  1863  de- 
feated a  soldiers'  voting  bill;  a  Republican  majority 
in  1865  passed  it.  In  New  York  a  soldiers'  voting 
bill  was  passed  by  a  Republican  Legislature  in  1863, 
and  vetoed  by  a  Democratic  Governor.  In  1864  the 
Constitution  was  amended,  and  the  soldiers'  voting 
bill  passed  by  the  Republican  Legislature  of  that 
year  against  Democratic  opposition.  In  Maryland, 
where  the  right  to  vote  in  the  field  was  given  by  the 
Constitution,  every  Democratic  member  of  the  Con- 


REVIEW  AND  SUMMARY  307 

vention  voted  against  it,  and  when  the  new  Consti- 
tution went  to  the  people,  every  Democratic  county 
in  the  State  gave  a  majority  against  it.  All  the 
Democrats  in  the  Pennsylvania  Legislature  voted 
against  the  amendment  giving  soldiers  the  right  to 
vote,  and  when  the  amendment  went  to  the  people 
105,352  Democrats  voted  against  it.  Every  Demo- 
cratic county  in  the  State  gave  a  majority  against 
the  amendment.  In  Wisconsin,  the  opposition  was 
most  intense,  the  final  vote  in  the  House  being  52 
Republicans  for  the  soldiers'  voting  bill,  and  40 
Democrats  against  it.  In  Indiana,  the  Democratic 
Legislature  of  1863  refused  to  pass  a  soldiers'  voting 
bill,  and  in  1864  the  Republican  House  passed  the 
bill,  the  Senate  defeated  it  and  refused  to  adopt  a 
constitutional  amendment  to  permit  such  a  bill  to 
be  passed.  All  the  Democrats  in  Michigan  voted 
against  a  soldiers'  voting  bill,  and  the  entire  Demo- 
cratic party  in  New  Hampshire  voted  against  a  bill 
to  permit  soldiers  to  vote  in  the  field  for  members  of 
Congress  and  presidential  electors,  although  the  bill 
contained  a  provision  that  it  should  not  take  effect 
until  the  Supreme  Court  had  declared  it  to  be  con- 
stitutional. In  Missouri  and  Kentucky  soldiers'  vot- 
ing bills  were  passed  simply  because  the  unconditional 
Union  men  of  those  States  had  swept  out  the  anti- 
war Democrats  by  requiring  a  test  oath  of  allegiance 
to  the  Union  as  a  qualification  to  vote.  In  New 
Jersey  19  Republicans  voted  in  favor  of  the  soldiers' 
voting  bill  and  31  Democrats  against  it.  There  were 
Democratic  majorities  against  amendments  to  the 
Constitution  to  permit  voting  in  the  field  in  every 
State  in  substantially  all  the  towns  where  there  was 
a  Democratic  majority. 
The  reason  for  this  opposition  is  doubtless  to  be 


308  VOTING  IN  THE  FIELD 

found  primarily  in  the  fact  that  the  soldiers'  voting 
bills  were  Republican  measures,  and  therefore  natu- 
rally, almost  necessarily,  opposed  by  the  Democratic 
opposition.  These  measures  were,  no  doubt,  pro- 
moted by  the  Republicans  because  they  thought  the 
soldiers'  vote  would  be  Republican  and  help  them  in 
retaining  control  of  the  State  and  of  the  Federal 
government.  This,  in  itself,  was  a  sufficient  reason 
why  the  Democrats  should  oppose  such  legislation. 
They  were  opposed  to  the  Lincoln  administration, 
and  wanted  to  turn  it  out.  Many  of  them  believed 
that  Lincoln  was  carrying  on  the  war  in  an  unlawful 
way.  They  denounced  conscription,  the  suspension 
of  the  writ  of  habeas  corpus,  what  they  termed  illegal 
arrests,  and  the  emancipation  proclamation.  There 
was  a  large  body  of  Democrats  who  sincerely  believed 
that  if  the  Democratic  party  had  control  of  the  war 
it  would  be  carried  on  very  much  better.  In  short, 
they  were  that  essential  thing  in  a  constitutional 
government,  an  opposition  party  bound  to  oppose 
whatever  the  majority  favored. 

In  addition  to  this,  however,  voting  in  the  field 
was  a  new  thing.  All  the  Constitutions  and  election 
laws  of  the  States  had  been  made  with  reference  to 
electors  voting  within  their  States  and  in  well-defined 
election  districts.  Nobody  had  ever  conceived  the 
idea  that  the  State  could  by  legislative  action,  or  even 
constitutional  provision,  authorize  elections  to  be  held 
outside  of  their  own  territory.  Many  able  and  ex- 
cellent men  believed  that  this  could  not  be  done,  and 
there  were  doubtless  a  large  number  of  Democrats  who 
acted  in  opposition  to  such  legislation  for  this  reason. 

There  was  also  opposition  to  giving  soldiers  under 
the  control  of  the  military  power  a  right  to  vote  in 
civil  affairs.  The  people  of  the  United  States  have 


REVIEW  AND  SUMMARY  309 

always  been  opposed  to  permitting  the  military  power 
to  have  any  control  in  civil  affairs.  They  have  car- 
ried this  so  far  that  many  States,  including  Michigan, 
Kansas,  Missouri,  Arkansas,  Wisconsin,  Kentucky, 
Ohio,  and  Iowa  have  provisions  in  their  Constitutions 
that  no  person  in  the  military,  naval  or  marine  service 
of  the  United  States  shall  become  a  voter  by  being 
resident  in  the  State.  It  was  feared  that  if  the  sol- 
diers were  given  the  ballot  they  would  vote  as  their 
officers  dictated,  and  that  thereby  the  civil  control 
of  the  State  might  be  subordinated  to  the  military 
power.  These  and  other  reasons  doubtless  caused 
much  of  the  opposition  to  soldiers'  voting  on  the  part 
of  the  Democratic  party.  But  the  real  reason  was 
the  one  which  I  have  stated, —  the  Democratic  party 
was  the  opposition  party,  and  naturally,  necessarily 
opposed  to  what  the  Republicans  promoted.  The 
Republicans  promoted  the  war  in  the  way  in  which 
they  were  carrying  it  on,  and  the  Democrats  opposed 
it.  To  say  this  is  not  to  impeach  the  loyalty  of  the 
Democrats  individually,  for  they  were  as  loyal,  and 
volunteered  in  as  great  numbers  as  the  Republicans. 
Indeed,  New  York,  New  Jersey  and  other  Demo- 
cratic States  supported  the  Union  with  means  and 
money  as  fully  and  freely  as  the  States  of  Ohio, 
Maine,  Iowa  and  Pennsylvania.  They  only  opposed 
the  conduct  of  the  war.  They  were  anti-war  Demo- 
crats because  they  were  opposed  to  the  Republican 
party.  Very  likely  if  they  themselves  had  been  in 
control  of  the  Union  government,  they  would  have 
carried  on  the  war  in  much  the  same  way  that  the 
Republicans  did.  But  they  were  not  in  control,  and 
therefore  they  opposed  the  measures  of  the  party  that 
was  in  control,  including  legislation  to  permit  soldiers 
to  vote  in  the  field. 


310  VOTING  IN  THE  FIELD 

The  Republicans  of  course  made  the  most  of  the 
Democratic  opposition  to  soldiers'  voting  in  the  field. 
Much  literature  was  issued  and  circulated  among  the 
soldiers  on  the  subject  in  the  presidential  campaign 
of  1864.  It  was  hastily  written  and  ephemeral.  Two 
pamphlets  are  before  me.  The  first  is  entitled  "Polit- 
ical Dialogues.  Soldiers  on  their  Right  to  Vote,  and 
the  Men  they  should  support."  It  purports  to  be  a 
dialogue  between  soldiers  of  Pennsylvania,  Ohio, 
Michigan,  Wisconsin,  Minnesota,  Illinois,  Indiana  and 
New  York,  and  states  what  has  been  done  and 
refused  to  be  done  in  the  way  of  soldiers'  voting  in 
the  field.  It  is  quite  full  and  effective. 

The  second  one  of  these  dialogues  is  by  soldiers  of 
Maine,  Connecticut,  New  Jersey,  Massachusetts,  New 
Hampshire,  Maryland,  West  Virginia  and  Vermont 
regiments.  It  is  not  so  full  as  the  first,  but  is 
very  effective  in  showing  up  the  Democratic  op- 
position to  the  Administration's  prosecution  of  the 
War.  It  notes  among  other  things  Ex-President 
Pierce's  letter  to  Davis  of  January  6,  1860,  in  which 
he  said  that  "the  fighting  will  not  be  along  Mason 
and  Dixon's  line  merely.  It  will  be  within  our  own 
borders,  in  our  own  streets." 

The  other  is  more  elaborate  and  was  prepared  for 
the  Union  Congressional  Committee  by  that  active 
and  virile  statesman,  William  E.  Chandler,  Speaker 
of  the  New  Hampshire  House.  It  is  entitled  "The 
Soldier's  Right  to  Vote.  Who  Opposes  It?  Who 
Favors  it?"  It  takes  up  the  matter  state  by  state, 
gives  what  had  been  done  or  attempted  to  be  done  in 
Maine,  New  Hampshire,  Vermont,  Rhode  Island, 
Connecticut,  New  York,  New  Jersey,  Pennsylvania, 
Delaware,  Ohio,  Michigan,  Illinois,  Wisconsin,  Cali- 
fornia, Iowa,  Minnesota,  Missouri,  and  Indiana.  Of 


REVIEW  AND  SUMMARY  311 

course  there  was  no  answer  to  this  for  it  showed 
clearly  that  all  acts  for  soldiers'  voting  had  been  passed 
where  the  Republicans  had  the  majority,  and  failed 
where  the  Democrats  had  the  majority. 

It  is  impossible  to  say  accurately  how  many  of  the 
soldiers  who  went  into  the  army  during  the  Civil  War 
were  voters.  The  total  number  of  soldiers  enlisted 
was  2,859,132  1  which  included  93,441  colored  troops, 
some  of  whom  were  probably  voters  at  home.  But 
if  we  deduct  them  all,  we  shall  have  2,765,691  white 
soldiers. 

From  such  investigation  as  it  has  been  possible  to 
make,  covering  a  considerable  number  of  volunteers 
in  the  Union  Army,  it  may  be  fairly  estimated  that 
nearly  29  per  cent  were  under  21  years  of  age  and  not 
voters.2  If  we  deduct  30  per  cent  from  the  total 
number  we  shall  have  1,935,984  soldiers  of  voting  age. 
There  should  be  a  still  further  deduction  for  soldiers 
who  were  in  hospitals  and  camps  in  their  own  States, 
which  must  be  estimated.  If  we  call  this  ten  per 
cent,  we  shall  have  left  1,742,386  soldiers  who  were 
able  to  vote  in  the  field. 

Of  course  in  these  numbers  soldiers  may  be  counted 
more  than  once,  and  there  may  be  other  discrepancies 
to  be  allowed  for.  But  if  we  estimate  these  at 
twenty -five  per  cent,  an  extreme  estimate,  we  shall  have 
1,306,790  left  as  the  number  of  soldiers  who  were 
disfranchised  by  going  into  the  army,  except  so  far 
as  the  soldiers'  voting  laws  reached  them  and  pro- 
vided an  opportunity  for  them  to  vote. 


1  Phisterer,  Statistical  Record,  p.  11. 

1  Elliott  on  the  Military  Statistics  of  the  United  States,  Proceedings,  Inter- 
national Statistical  Congress,  1863,  p.  32. 

B.  A.  Gould,  Investigation  in  the  Military  and  Anthropological  Statistics  of 
American  Soldiers,  p.  35. 


312  VOTING  IN  THE  FIELD 

But  these  laws  did  not  reach  them  and  enable 
them  to  vote  in  any  great  numbers.  The  most  re- 
markable thing  which  appears  is  the  small  number  of 
votes  cast  by  soldiers  in  the  field  and  actually  counted 
in  the  elections  at  home.  In  Minnesota,  New  York, 
Connecticut  and  West  Virginia  the  laws  were  so 
framed  that  proxy  voting  was  allowed,  which  pre- 
vented any  record  being  made  of  the  votes  that  were 
cast  by  soldiers  separate  from  the  votes  cast  by 
others.  But  in  the  States  of  Iowa,  Wisconsin,  Ohio, 
Vermont,  Michigan,  Kentucky,  Kansas,  Maine,  Cali- 
fornia, Rhode  Island,  Pennsylvania,  New  Hampshire 
and  Maryland,  where  the  voting  was  really  in  the 
field,  and  a  record  made  of  the  votes  cast,  in  1864, 
when  all  these  States  voted,  and  when  the  presiden- 
tial election  was  supposed  to  require  everybody  to 
vote  in  the  army  who  could,  the  total  vote  cast  by 
the  soldiers  was  only  150,188. 

To  ascertain  the  votes  that  were  cast  in  New  York, 
Minnesota,  Connecticut,  and  West  Virginia,  we  may 
apply  the  average  percentage  of  votes  cast  to  the 
total  vote  in  the  States  of  Iowa,  Wisconsin,  Ohio, 
Kansas,  Maine,  California  and  Pennsylvania,  which 
is  eight  per  cent.  This  gives  as  the  soldiers'  vote 
cast  in  these  States  only  71,497.  Applying  the  same 
percentage  to  the  votes  of  Missouri  and  Nevada, 
when  there  is  no  record  of  votes  cast,  we  shall  add 
only  9,667  votes.  Adding  these  two  sums  to  the 
150,188  recorded  votes,  we  find  that  only  231,352 
votes  were  cast  by  soldiers  in  the  field  and  by  proxy, 
under  the  soldiers'  voting  acts,  and  counted  in  the 
elections  at  home,  for  President  in  1864. 

The  entire  vote  cast  for  President  in  1864  was 
4,034,789.  From  this  must  be  deducted  the  votes  of 
Indiana,  Illinois,  Delaware,  New  Jersey,  Oregon,  and 


REVIEW  AND  SUMMARY  313 

Massachusetts,  where  the  soldiers  could  not  vote  in 
the  field,  which  amounted  to  968,382  votes,  leaving 
3,066,407  votes  cast  in  the  States  which  had  soldiers' 
voting  laws.  Two  hundred  and  thirty -one  thousand 
three  hundred  and  fifty-two  is  seven  and  a  half  per 
cent  of  this  vote.  The  discrepancy  between  eight  per 
cent  as  applied  to  the  States  of  which  we  have  no 
record,  and  seven  and  a  half  per  cent  of  the  total 
vote  is  easily  accounted  for  by  the  variations  in  the 
percentages  of  the  States  of  which  we  have  a  record. 
So  that  testing  the  matter  in  either  way,  we  find  that 
about  230,000  to  235,000  soldiers  only  cast  votes, 
either  in  the  field  or  by  proxy,  which  were  counted 
in  the  elections  at  home. 

Examination  of  the  votes  cast  in  the  field  in  all  the 
States  shows  that  except  in  the  State  of  Maryland, 
soldiers'  votes  had  substantially  no  effect  in  the  elec- 
tion. They  had  no  effect  upon  the  election  of  Gover- 
nor and  other  officers  voted  for  upon  the  general 
State  ticket.  A  few  minor  State  officers,  such  as 
Judges  of  Probate,  Prosecuting  Attorneys,  etc.,  are 
known  to  have  been  elected  by  the  soldiers'  vote,  and 
one  Judge  of  the  Supreme  Court  was  thus  elected. 
A  solitary  Congressman  was  elected  in  Michigan  by 
the  soldiers'  vote,  and  was  seated  by  Congress.  With 
these  unimportant  exceptions  there  was  no  result 
from  the  constitutional  amendments  and  the  soldiers' 
voting  acts  which  I  have  reviewed. 

In  the  single  State  of  Maryland  the  soldiers'  voting 
provision  in  the  Constitution  produced  an  important 
effect.  It  caused  the  Constitution  itself  to  be  adopted 
by  the  popular  vote  by  a  majority  of  475,  which  was 
wholly  found  in  the  soldiers'  vote  in  the  field  out  of 
the  State.  And  this  Constitution  abolished  slavery. 
Examination  of  the  various  statutes  shows  that 


314  VOTING  IN  THE  FIELD 

in  the  Southern  States  the  right  to  vote  in  the  field 
was  given  to  those  who  were  in  the  military  service, 
but  did  not  include  those  in  the  naval  service.  In 
the  Northern  States  it  was  given  to  those  who  were 
"in  the  military  or  naval  service,"  or  in  the  "service 
of  the  United  States  in  the  Army  or  Navy,"  in  Minne- 
sota, West  Virginia,  New  York,  Michigan  and  Nevada. 

In  the  States  of  Iowa,  Vermont,  Connecticut,  Wis- 
consin, Ohio,  Illinois,  Maine,  Kansas,  California,  New 
Hampshire,  Maryland,  Rhode  Island,  Pennsylvania, 
Kentucky  and  Missouri  the  right  wras  given  to  persons 
who  were  "in  the  military  service,"  and  there  does  not 
seem  to  have  been  any  vote  taken  in  any  of  the  States 
of  sailors  and  marines  in  the  naval  service. 

It  is  interesting  to  see  how  the  legislation  permitting 
soldiers  to  vote  in  the  field  has  disappeared. 

In  Missouri  it  disappeared  in  the  Constitution  of 
1875;  in  Iowa  it  was  regarded  as  being  temporary  in 
its  character  and  disappeared  in  the  Code  of  1873  for 
that  reason;  in  Wisconsin  it  was  repealed  in  the 
Revision  of  the  Statutes  of  1871;  in  Minnesota  the 
soldiers'  voting  act  was  repealed  in  the  Revision  of 
the  Statutes  in  1866;  in  Vermont  the  soldiers'  voting 
legislation  was  all  repealed  in  1880,  in  the  Revision  of 
the  Statutes  of  that  year;  in  WTest  Virginia  it  was 
omitted  in  the  preparation  of  the  Code  of  1868;  in 
California  the  soldiers'  voting  act  was  repealed  in 
1866,  having  been  declared  unconstitutional  by  the 
Supreme  Court;  in  Pennsylvania  the  soldiers'  voting 
acts  were  omitted  in  the  preparation  of  the  Digest  of 
1872;  in  New  Hampshire  the  laws  for  soldiers'  voting 
were  repealed  in  1897  so  far  as  they  were  then  in 
force;  in  Maryland,  the  provision  in  the  Constitution 
of  1864  authorizing  soldiers  to  vote  in  the  field  was 
omitted  in  the  new  Constitution  which  was  adopted 


REVIEW  AND   SUMMARY  315 

in  September,  1867.  In  Ohio  the  legislation  was  by 
its  terms  limited  to  the  time  of  the  Civil  War,  or  as 
the  statute  said,  "during  the  existence  of  the  present 
rebellion":  in  Connecticut  the  constitutional  amend- 
ment was  by  its  terms  to  become  "  inoperative  and 
void  upon  the  termination  of  the  Civil  War"  and  the 
legislation  under  the  amendment  was  omitted  from 
the  compilations  of  the  statutes  after  the  war;  in 
Kentucky  the  legislation  was  for  the  single  presiden- 
tial election  of  1864,  and  was  repealed  in  1865.  In 
New  York,  the  amendment  permitting  soldiers  to 
vote  in  the  field  remains  in  the  Constitution,  but  the 
legislation  of  1864  was  repealed  in  1865  by  a  sub- 
stitute act,  and  in  1866  the  substitute  act  of  1865 
was  repealed,  but  an  act  was  passed  in  1898  under  the 
amendment  which  gives  absent  soldiers  the  right  to 
vote  in  the  field.  In  Illinois  the  act  of  1865  was 
omitted  from  the  subsequent  compilation  of  the 
statutes  as  temporary  in  its  character.  The  constitu- 
tional amendments  and  statutes  for  soldiers'  voting 
in  the  field  are  still  retained  in  Michigan,  Kansas, 
Maine,  Nevada,  and  Rhode  Island. 

It  thus  appears  that  the  legislation  for  soldiers' 
voting  was  limited  to  the  time  of  the  Civil  War  in 
Ohio  and  Connecticut,  and  in  Kentucky  was  adopted 
only  for  one  election,  and  that  in  California  the  legis- 
lation was  declared  unconstitutional:  that  the  legis- 
lation was  regarded  as  temporary,  and  repealed  or 
omitted  from  subsequent  codifications  of  the  statutes, 
in  Missouri,  Iowa,  Wisconsin,  Minnesota,  Vermont, 
West  Virginia,  Pennsylvania,  New  Hampshire,  Mary- 
land and  Illinois,  —  ten  States.  And  that  it  now 
exists  only  in  Michigan,  Kansas,  Maine,  New  York, 
Nevada  and  Rhode  Island. 

Various  causes  contributed  to  the  small  vote  cast 


316  VOTING  IN  THE  FIELD 

and  counted  by  the  Northern  soldiers  in  the  Civil 
War.  In  the  first  place,  the  field  of  war  was  very 
wide,  and  the  troops  of  the  different  States  scattered 
in  that  field  to  such  an  extent  that  it  was  very  diffi- 
cult to  get  their  votes.  One  regiment  of  Vermont 
troops  spent  its  entire  term  of  service  in  Louisiana, 
in  the  Department  of  the  Gulf,  while  the  other  regi- 
ments were  in  Virginia  and  the  Northern  theatre  of 
war.  The  same  was  true  of  the  regiments  in  New 
Hampshire.  The  troops  from  Ohio  were  at  Fort 
Donelson,  Island  No.  10,  Atlanta,  Chickamauga, 
Fort  Wagner,  Pea  Ridge,  North  Carolina,  the  sieges 
of  Vicksburg  and  of  Charleston,  and  the  siege  of 
Mobile.  They  were  at  Pittsburg  Landing,  at  Antie- 
tam,  and  at  Corinth.  They  were  in  the  Wilderness 
and  they  fought  at  Nashville.  The  troops  from  New 
York  were  with  Sheridan  in  the  Shenandoah,  and  with 
Sherman  in  his  march  to  the  sea.  They  fought  at 
Chattanooga,  in  the  Gulf,  at  Atlanta,  and  at  Appo- 
mattox.  The  same  is  true  of  the  regiments  from 
Wisconsin,  Missouri,  Iowa  and  other  States.  And  be- 
sides they  were  so  much  engaged  in  the  active  busi- 
ness of  carrying  on  the  war,  that  they  were  a  very 
difficult  body  of  men  to  reach  for  the  purpose  of 
voting.  Voting  in  the  field  does  not  practically  work 
well  with  fighting  in  the  field. 

Then  there  was  the  difficulty  of  getting  the  votes 
home  to  the  various  States  in  season  to  be  counted 
with  the  other  votes.  Communication  was  not  then 
as  easy  and  certain  as  it  is  now.  The  country  was 
not  occupied  and  knit  together  by  railroads,  telephone 
and  telegraph  as  it  is  now.  At  the  time  of  the  Civil 
War  there  were  less  than  21,000  miles  of  railroad  in 
the  United  States.  Now  there  are  a  little  more  than 
200,000.  At  the  time  of  the  Civil  War  Massachusetts 


REVIEW  AND   SUMMARY  317 

had  about  1,200  miles  of  railroad.  Now  she  has  over 
2,000;  New  Hampshire  had  about  700  miles,  now  she 
has  about  1,300;  California  had  23  miles,  now  she  has 
over  8,000;  Oregon  had  no  railroads,  now  she  has 
more  than  3,000  miles;  Missouri  had  about  800  miles, 
now  she  has  nearly  9,000;  Illinois  had  3,000  miles, 
now  she  has  12,000;  Wisconsin  had  about  900 
miles,  now  she  has  nearly  8,000.  Even  New  York  had 
only  a  little  more  than  2,600  miles,  now  she  has 
about  9,000;  Pennsylvania  had  2,500  miles,  now  she 
has  11,500,  while  Minnesota,  which  had  no  railroad 
mileage  at  the  time  of  the  Civil  War,  has  now  over 
9,000  miles;  Iowa  had  less  than  700  miles,  now  it  has 
more  than  10,000  miles;  Kansas  had  less  than  700 
miles,  now  it  has  about  10,000  miles. 

All  of  these  railroads  were  poorly  built  and  badly 
equipped,  with  no  operating  connections.  They  were 
operated  separately  by  small  corporations,  and  gave 
a  very  ineffective,  insufficient  service,  according  to 
present  standards.  There  were  no  electric  rail- 
ways, practically  no  horse  railways  except  in  large 
centres,  no  telephone,  and  a  quite  imperfect  telegraph 
system. 

In  counting  the  votes  at  home,  in  all  the  proxy 
States,  that  is,  all  the  States  where  the  soldiers  voted 
by  proxy  and  the  votes  were  really  cast  in  the  election 
at  home,  they  were  counted  when  the  votes  of  that 
election  were  counted  or  canvassed.  In  the  States 
where  there  was  real  voting  in  the  field,  provision 
was  made  in  some  instances  for  an  extension  of  time 
for  canvassing  the  votes.  For  instance,  in  North 
Carolina  it  was  provided  in  the  soldiers'  voting  act 
of  that  State  that  the  votes  should  be  counted  twenty 
days  after  they  were  cast  in  the  field.  In  Alabama 
thev  were  counted  on  the  26th  of  November,  which 


318  VOTING  IN  THE  FIELD 

would  be  about  two  or  three  weeks  after  the  election, 
or  "in  two  days  thereafter."  In  Georgia  they  were 
required  to  be  counted  "within  fifteen  days  after  the 
election,"  that  is,  after  the  day  on  which  they  were 
cast.  In  South  Carolina  they  were  counted  on  "the 
first  Saturday  next  ensuing"  after  the  election  at 
which  they  were  cast,  and  the  polls  in  the  field  were 
to  be  opened  on  any  day  "within  ten  days  before 
the  election."  In  Florida  they  were  to  be  counted  on 
"the  twentieth  day  after  the  election."  In  Virginia 
and  Tennessee  they  were  to  be  counted  with  the  other 
votes  by  the  canvassing  or  returning  board. 

In  the  Northern  States  the  soldiers'  voting  acts 
provided  that  the  votes  cast  in  the  field  should  be 
counted  with  the  other  votes  or  canvassed  by  the 
State  Board  of  canvassers  or  by  the  Governor  and 
Council  as  in  Maine  and  New  Hampshire,  or  by  the 
General  Assembly  as  in  Vermont,  or  by  the  Secretary 
of  State  as  in  Rhode  Island,  or  by  the  Governor  alone 
as  in  Maryland.  Maryland  was  the  only  State  where 
the  statute  required  the  canvassing  officer,  the  Gov- 
ernor in  that  case,  to  delay  making  a  canvass  of  the 
receipt  of  the  soldiers'  votes.  In  Maryland  he  was 
required  to  wait  "fifteen  days  after  the  election" 
before  counting  the  soldiers'  vote.  It  seems  to  have 
been  understood  in  all  these  Northern  States  except 
Maryland  that  a  sufficient  period  would  elapse  be- 
tween the  day  of  the  election,  which  was  the  day  on 
which  the  soldiers  were  to  vote  in  the  field,  and  the 
counting  of  the  votes  of  the  State  by  the  officers  who 
were  to  count  them,  to  enable  the  votes  to  reach 
them.  I  do  not  think  they  did  reach  them  within 
this  time  in  every  case.  In  Vermont  nearly  all  the 
votes  were  delayed  beyond  the  time  for  counting 
them  in  1864  and  were  lost  in  that  way. 


REVIEW  AND  SUMMARY  319 

In  1864,  the  percentage  of  the  soldiers'  vote  for 
President  in  the  different  States  was  as  follows:  — 

In  Iowa  ninety  per  cent  of  the  soldiers  voted  for 
Lincoln,  and  ten  per  cent  for  McClellan;  in  Wiscon- 
sin, eighty-two  per  cent  voted  for  Lincoln,  eighteen 
per  cent  for  McClellan;  in  Ohio,  eighty  per  cent 
voted  for  Lincoln,  twenty  per  cent  for  McClellan; 
in  Vermont,  eighty-three  per  cent  voted  for  Lincoln, 
seventeen  per  cent  for  McClellan;  in  Michigan, 
seventy-eight  per  cent  voted  for  Lincoln,  twenty-two 
per  cent  for  McClellan;  in  Kentucky  thirty  per 
cent  voted  for  Lincoln,  seventy  per  cent  for  McClel- 
lan; in  Kansas,  eighty -five  per  cent  voted  for  Lincoln, 
fifteen  per  cent  for  McClellan;  in  Maine,  eighty -four 
per  cent  voted  for  Lincoln,  sixteen  per  cent  for 
McClellan;  in  California,  ninety -two  per  cent  voted 
for  Lincoln,  eight  per  cent  for  McClellan;  in  Rhode 
Island  eighty-five  per  cent  voted  for  Lincoln,  fifteen 
per  cent  for  McClellan;  in  Pennsylvania,  sixty-eight 
per  cent  voted  for  Lincoln,  thirty-two  per  cent  for 
McClellan;  in  New  Hampshire,  seventy-five  per  cent 
voted  for  Lincoln,  twenty-five  per  cent  for  McClellan; 
and  in  Maryland,  forty-four  per  cent  for  Lincoln,  and 
fifty-six  per  cent  for  McClellan. 

These  percentages  are  computed  from  the  actual 
votes  cast  and  counted  in  the  election,  and  the 
average  per  cent  is  seventy-five  per  cent  for  Lincoln, 
and  twenty-five  per  cent  for  McClellan. 

In  New  York,  Connecticut,  Minnesota,  Wrest  Vir- 
ginia, and  Missouri,  there  is  no  actual  record  of  the  sol- 
diers' vote  separate  from  the  other  votes  cast.  But  I 
think  we  may  assume  that  the  percentages  would  be  the 
same  in  these  States  as  in  all  the  others  where  we  have 
the  record,  so  that  we  may  fairly  say  that  the  percent- 
age of  the  soldiers'  vote  cast  and  counted  in  all  the 


320  VOTING  IN  THE  FIELD 

States  was  seventy-five  per  cent  for  the  Union  ticket, 
and  twenty-five  per  cent  for  the  Democratic  ticket. 

It  was  feared  that  the  soldiers  would  not  vote  freely 
in  the  field,  that  they  would  be  influenced  by  their 
officers  to  vote  the  Republican  ticket,  that  regiments 
would  vote,  to  use  the  phrase  of  the  time,  "  as  the 
colonel  said."  Many  felt  that  it  was  impossible  to 
have  a  free  and  fair  election  in  the  field.  Hence  there 
were  put  into  all  the  acts  for  soldiers'  voting  in  the 
field  very  stringent  provisions  to  secure  the  soldiers 
from  undue  influence  by  their  officers.  Many  of  the 
acts  provided  that  the  votes  should  be  taken  by  com- 
missioners appointed  by  the  State;  some  provided 
that  the  votes  should  be  announced  when  they  were 
cast;  and  in  various  ways  it  was  sought  to  prevent 
undue  influence  upon  the  soldiers  in  the  casting  of 
their  votes  in  the  field.  But  the  result  showed  that 
all  these  fears  were  unfounded.  Elections  in  the  field 
were  subjected  to  no  undue  influence.  This  is  shown 
by  the  fact  that  in  Kentucky  in  1864  McClellan  re- 
ceived 2,823  votes  and  Lincoln  only  1194;  also  more 
strikingly  shown  by  the  fact  that  in  the  "  Vermont 
Brigade,"  in  1864,  while  the  soldiers  gave  Lincoln  a 
majority  in  the  Brigade,  the  second  and  fourth  regi- 
ments gave  majorities  for  McClellan.1 

Lincoln  in  his  annual  message  of  December  6,  1864, 
gave  a  resume  of  the  election  returns  of  1864,  in 
which  he  said  that  "  the  number  of  all  soldiers  in 
the  field  from  Massachusetts,  Rhode  Island,  New 
Jersey,  Delaware,  Indiana,  Illinois,  and  California, 
who  by  the  laws  of  those  states  could  not  vote  away 
from  their  homes,  cannot  be  less  than  90,000."  2 


1  Vermont  in  the  Civil  War,  Benedict,  Vol.  1,  p.  567. 
*  Complete  Works  of  Abraham  Lincoln,  Vol.  10,  p.  306. 


REVIEW  AND   SUMMARY  321 

Allowing  for  Rhode  Island  and  California,  where 
soldiers  did  vote  in  the  field  in  1864,  and  for  the 
necessarily  incomplete  returns  on  which  a  message 
written  in  November,  1864,  was  based,  this  statement 
was  substantially  accurate. 

Lincoln  watched  the  soldiers'  vote  in  the  October 
elections  of  1864  with  great  care.  In  a  telegram  to 
General  Grant  of  October  12,  1864,  he  says:  — 

"Secretary  of  War  not  being  in  I  answer  yours  about 
election.  Pennsylvania  very  close  and  still  in  doubt  on 
home  vote.  Ohio  largely  for  us  with  all  the  members  of 
Congress  but  two  or  three.  Indiana  largely  for  us, — 
Governor  it  is  said  by  15,000,  and  eight  of  the  eleven 
members  of  Congress.  Send  us  what  you  may  know  of 
your  army  vote."  l 

On  October  10  he  sent  a  telegram  to  Maryland, 
saying: 

'  The  Maryland  soldiers  in  the  Army  of  the  Potomac 
cast  a  total  vote  of  1,428,  out  of  which  we  get  1,160 
majority.  This  is  directly  from  General  Meade  and  Gen- 
eral Grant."  2 

And  yet  his  anxiety  was  relieved  by  a  spice  of 
humor,  for  Hay  records  in  his  diary  that  the  President 
with  himself  was  at  the  War  Department  on  the 
night  of  the  elections  of  October,  1864,  and  heard  the 
returns  from  the  elections.  Indiana,  Pennsylvania, 
Illinois  and  New  York  sent  Republican  indications 
early.  The  reports  from  the  hospitals  and  camps 
showed  wide  differences  of  opinion  among  the  voters. 
The  Ohio  troops  voted  about  ten  to  one  for  the 


1  Complete  Works  of  Abraham  Lincoln,  Vol.  10,  p.  241. 
1  Ibid.,  p.  262. 


322  VOTING  IN  THE  FIELD 

Union,  but  the  Carver  Hospital,  by  which  Stanton 
and  Lincoln  passed  every  day  on  their  way  to  the 
country,  gave  the  heaviest  opposition  vote,  about  one 
to  three.  Lincoln  said:  "  That  is  hard  on  us,  Stanton, 
they  know  us  better  than  the  others."  : 

The  period  covered  by  the  investigations  of  this 
book  is  very  near  to  me.  I  well  remember  the 
campaign  of  1860,  the  election  and  inauguration  of 
Lincoln,  and  the  consequent  secession  of  the  Southern 
States.  I  was  a  private  in  a  Vermont  regiment,  and 
cast  my  first  vote  for  Lincoln  in  1864.  It  has  seemed 
to  me  that  the  soldiers'  voting  legislation  has  not  only 
an  historic,  but  a  sentimental,  interest.  The  reasons 
that  the  people  North  and  South  sought  to  prevent  a 
man  from  being  disfranchised  because  he  volunteered, 
were  eminently  creditable,  and  the  record  of  what  they 
did  should  be  preserved.  If  I  have  done  it  in  this  book, 
I  have  accomplished  my  purpose. 


1  The  Life  of  John  Hay;  Thayer,  1915,  Vol.  1,  p.  214. 


INDEX 


Abolition  of  slavery,  Missouri  conven- 
tion of  1865  passes  ordinance  of  abo- 
lition, 46;  Lincoln's  proposal  to 
abolish  slavery  in  Delaware  rejected, 
267;  Maryland  constitutional  amend- 
ment founded  on  soldiers'  vote  in  the 
field,  313 

Alabama,  34;  General  Assembly  passes 
soldiers'  voting  act,  34 

Andrew,  Gov.  of  Massachusetts,  recom- 
mends adoption  of  amendment  to 
Constitution,  295 

Anti-war  democrats,  judges  of  Pennsyl- 
vania Supreme  Court,  declare  soldiers' 
voting  act  unconstitutional,  196 

Arkansas,  does  not  pass  soldiers'  voting 
laws,  28 

Arthur,  Capt.  C.  J.;  his  name  forged  by 
New  York  election  inspectors,  163 

Baltimore  riots,  224 

Banks,  Gen.,  receives  orders  from  Secre- 
tary of  War  to  arrest  members  of 
Maryland  Legislature,  226;  letter 
from  Gen.  McClellan  on  details  of 
arrests,  226 

Bell,  S.  D.,  Chief  Justice  of  New  Hamp- 
shire, opinion  on  constitutionality 
of  proposed  soldiers'  voting  act,  206 

Benton,  J.  H.,  private  in  Vermont  Regi- 
ment, casts  his  first  vote  for  Lincoln 
in  1864,  321 

Blair,  F.  P.,  saves  Missouri  to  the  Union, 
42 

Blair,  Gov.  of  Michigan;  message  to 
the  Legislature  recommending  a  sol- 
diers' voting  bill,  95;  recommends 
amendment  to  the  act  in  1865,  102 

Bourland  vs.  Hildreth,  contested  election 
case  in  California,  129 

Bradford,  Gov.  of  Maryland,  election 
of,  230;  complains  to  Lincoln,  231; 


Lincoln's  answer,  232;  issues  procla- 
mation on  voting  on  new  Constitu- 
tion, 244;  opposition  to  submitting 
adoption  of  new  Constitution  to  per- 
sons not  authorized  to  vote,  244; 
controversy  on  the  question,  245; 
refers  to  similar  procedure  in  adop- 
tion of  Virginia  Constitution  of 
1829,  246. 

Brough,  elected  Gov.  of  Ohio,  78 

Bruce,  G.  A.,  obtains  permission  from 
Gen.  Butler  for  New  Hampshire 
soldiers  to  go  home  to  vote,  221; 
his  account  of  voting  in  the  field, 
222 

Buckingham,  Gov.  of  Connecticut,  his 
messages  to  Legislature,  174,  176 

Butler,  Gen.,  gives  permission  to  New 
Hampshire  soldiers  to  go  home  to 
vote,  221 ;  seizes  Baltimore  forts  and 
controls  Chesapeake  Bay,  224 

Butterfield,  originator  of  American  Ex- 
press Co.,  manages  distribution  of 
voting  blanks  among  New  York 
troops  in  the  field,  156 

Cagger,  P.,  inspires  appointments  by 
Gov.  Seymour  of  Democratic  elec- 
tion inspectors,  160 

California,  128;  soldiers'  voting  act 
passed  by  Legislature,  1864,  128;  act 
declared  unconstitutional  by  majority 
of  Supreme  Court,  129;  act  repealed 
in  1866,  131;  soldiers'  vote  in  1864, 
131 

Cameron,  S.,  Secretary  of  War,  orders 
Gen.  Banks  to  prevent  Maryland 
Legislature  from  passing  ordinance 
of  secession  225 

Campbell,  Judge  of  Supreme  Court  of 
Michigan,  holds  soldiers'  voting  bin 
unconstitutional,  101 


323 


324 


INDEX 


Carver  Hospital,  Washington,  men- 
tioned, 322 

Causes  of  small  vote  cast  by  soldiers  in 
the  field,  316 

Chambers,  E.  F.,  asks  injunction  against 
counting  soldiers'  votes  in  Maryland, 
247 

Chandler,  W.  E.,  speaker  of  New  Hamp- 
shire House  of  Representatives, 
rules  out  Governor's  veto  of  soldiers' 
voting  bill,  209;  publishes  campaign 
tract:  "The  soldier's  right  to 
vote,"  310 

Chandler  vs.  Mam,  Wisconsin  contested 
election  case,  64,  65;  cited  in  Iowa 
case,  51 

Chase  vs.  Miller,  Pennsylvania  con  tested 
election  case,  190;  considered  by 
Michigan  Legislature,  99 

Chesapeake  Bay,  controlled  by  Gen. 
Butler,  224 

Cochran,  J.,  Attorney  General  of  New 
York,  certifies  to  amendment  to  Con- 
stitution, 153 

Colored  troops  in  Maryland  regiments, 
225 

Confederate  States:  Tennessee,  vote  on 
Constitution,  32;  Kentucky  elects 
members  of  Confederate  Congress, 
107 

Connecticut  174;  Governor's  messages 
recommending  legislation  for  soldiers' 
voting  in  1862,  174;  in  1863,  176; 
Legislature  passes  act  which  is  de- 
clared unconstitutional  by  Supreme 
Court,  175;  amendment  to  Constitu- 
tion discussed  in  Legislature,  177; 
amendment  passed  by  Legislature  and 
adopted  at  election  in  1864,  179; 
soldiers'  voting  act  (to  vote  by  proxy) 
passed,  179;  soldiers'  vote  of  1864 
not  recorded,  180 

Conscription,  in  South,  29;  in  North, 
30 

Constitutional  amendments  and  ordi- 
nances to  allow  soldiers  to  vote  in  the 
field:  North  Carolina,  31;  Virginia, 
34;  South  Carolina,  38;  Florida,  38; 
Missouri,  43,  45;  Michigan,  103; 


Kansas,  113;  Maine,  121,  126;  New 
York,  153;  Nevada,  171;  Connecti- 
cut 179;  Rhode  Island,  186;  Penn- 
sylvania, 200;  Maryland,  244;  New 
Jersey,  280 

Constitutional  provisions  against  mem- 
bers of  U.  S.  army  and  navy  becoming 
voters  by  being  residents  of  the 
State,  in  several  States,  309 

Contested  elections  on  account  of  votes 
by  soldiers:  Iowa,  50;  Wisconsin, 
51,  64,  65;  Ohio,  74,  75;  Pennsyl- 
vania, 99,  190;  Michigan,  101,  103; 
California,  129 

Conyngham,  Judge  of  Pennsylvania 
Court  of  Quarter  Sessions,  upholds 
constitutionality  of  soldiers'  voting 
act,  191-193 

Cooley,  Judge  of  Supreme  Court  of 
Michigan,  holds  soldiers'  voting  bill 
unconstitutional,  101 

Curry,  Judge  of  Supreme  Court  of  Cali- 
fornia, in  dissenting  opinion,  declares 
soldiers'  voting  act  constitutional, 
130 

Curtin,  elected  Gov.  of  Pennsylvania 
in  1863,  196;  signs  soldiers'  voting 
bill,  200 

Delaware,  266;  soldiers'  voting  bill 
introduced  in  Legislature  of  1862,  and 
rejected,  267;  Delaware  troops  in 
the  Union  army,  266;  emancipation 
of  slaves  against  payment,  proposed 
by  Lincoln,  rejected,  267 

Democratic  party,  gains  and  losses  in 
elections  after  1860,  20-26 

Depew,  C.  M.,  Secretary  of  State  of 
New  York,  certifies  to  amendment  to 
Constitution,  153;  his  account  of  dif- 
ficulties encountered  in  Washington 
to  obtain  a  statement  of  locations  of 
New  York  regiments  in  the  field,  154, 
155 

Disfranchising  of  voters  in  the  army, 
311 

Dix,  J.  A.,  226;  memoirs,  226  n.\  issues 
orders  to  prevent  illegal  voting  in 
Maryland,  228,  233 


INDEX 


325 


Donahue,  E.  J..  Jr.,  appointed  by  Gov. 
Seymour  of  New  York,  inspector  of 
elections  in  the  field,  160;  arrested 
for  fraud,  161,  162;  trial  of,  162,  163; 
sentenced  for  life,  164 

Emancipation  of  slaves,  action  in  Mis- 
souri, 46;  Lincoln  declines  to  include 
Missouri  in  emancipation  proclama- 
tion, 46;  Lincoln's  proposal  to  Dela- 
ware rejected,  267;  soldiers'  vote  in 
the  field  affects  constitutional  amend- 
ment abolishing  slavery  in  Maryland, 
313 

Ferry,  New  York  State  agent  of  elec- 
tion at  Washington,  pleads  guilty  to 
forging  names  of  soldiers,  161-163; 
sentenced  for  lite,  164 

Florida,  38;  soldiers'  voting  ordinance 
passed  by  convention  in  1861,  38; 
Legislature  passes  act  amending  ordi- 
nance in  1862,  39,  40 

Frauds  in  carrying  out  the  soldiers' 
voting  act  of  New  York,  159-170 

Fuller,  M.  W.,  brief  in  contest  against 
prorogation  of  Illinois  Legislature, 
261 

Furloughing  of  soldiers  to  go  home  to 
vote,  New  Hampshire,  231;  Indiana, 
291 

Georgia,  soldiers'  voting  law  passed,  36 

German  citizens  of  St.  Louis,  co-operate 
with  Blair  and  Lyon  to  save  U.  S. 
property,  42 

Gettysburg,  mentioned,  26 

Gilmore,  Gov.  of  New  Hampshire,  mes- 
sage to  Legislature,  204;  act  intro- 
duced in  the  Legislature  but  found 
unconstitutional  by  Supreme  Court, 
206;  act  again  recommended  by 
Governor  to  Legislature  of  1864,  207; 
vetoes  soldiers'  voting  act  of  1864, 
but  veto  not  received  by  the  House 
and  the  bill  becomes  law  without  his 
signature,  209;  repeats  his  veto  mes- 
sage. 210,  211 

Grant,  Gen.,  mentioned,  247,  321 


Hakes,  L.,  argument  against  Pennsyl- 
vania soldiers'  voting  act,  191 

Hay,  J.,  his  diary  mentioned,  321 

Hoffman,  H.  W.,  telegram  from  Lincoln 
on  result  of  election  of  1864  and  on 
the  vote  of  Maryland  soldiers,  247, 
321 

Holt,  Judge  Advocate,  reports  to  Secre- 
tary of  War  on  a  conspiracy  to  de- 
fraud New  York  soldiers  of  their 
votes,  164,  165 

Illinois,  250;  anti-slavery  laws  evaded 
by  system  of  indentured  servants, 
250;  slavery  eradicated  by  con- 
stitution of  1848,  250;  constitu- 
tional convention  called  251;  soldiers 
allowed  to  vote,  253;  Constitution  re- 
jected, 253;  Gov.  Yates  recommends 
to  Legislature  of  1863  an  enactment 
to  allow  soldiers  to  vote,  253;  bills 
introduced,  255,  260;  Legislature  pro- 
rogued by  the  Governor  and  no 
action  taken,  260;  prorogation  con- 
tested by  Democrats.  261;  Governor's 
message  to  Legislature  in  1865  re- 
newing his  recommendation,  261-264; 
soldiers'  voting  act  passed,  265 

Indiana,  281;  soldiers'  voting  bill  in- 
troduced in  Legislature  of  1863,  no 
action  taken,  281-282;  by  advice  of 
Gov.  Morton,  Republican  minority 
bolts,  and  Legislature  adjourns  with- 
out making  appropriations,  284;  Gov. 
Morton  organizes  Bureau  of  Finance 
to  carry  on  government,  286;  message 
of  Gov.  Morton  recommending  amend- 
ment to  Constitution,  287;  soldiers' 
voting  bill  introduced,  288;  not  passed 
and  action  protested  by  Indiana 
soldiers  hi  the  army,  290;  soldiers 
furloughed  to  vote  in  State  election 
of  1864,  291 

Iowa,  46;  Gov.  recommends  to  the 
Legislature  an  act  to  allow  soldiers 
to  vote  in  the  field,  47;  act  passed, 
48;  soldiers  vote  in  State  election  of 
1862,  and  election  contested,  50;  law 
upheld  by  Supreme  Court,  51;  sol- 


326 


INDEX 


diers'  vote  in  the  field    1862-65,  51, 
52 

Jackson,   Gov.   of  Missouri,   his  camp 
gathered    to    aid    the    Confederacy 
broken  up  by  Union  men,  42 
Johnson,  Confederate  Gen.,  226 
Johnson,  R.,  U.  S.  senator,  244 

Kansas,  108;  Governor,  in  message  to 
the  Legislature  of  1863,  recommends 
amendment  of  the  Constitution  to 
permit  volunteer  soldiers  to  vote, 
108;  joint  resolution  proposing  an 
amendment  passed  in  the  Senate,  but 
lost  in  the  House,  109 ;  soldiers'  vot- 
ing act  passed,  110,  115;  at  general 
election  of  1864,  people  vote  on  con- 
stitutional amendment  permitting 
the  act,  and  soldiers  vote  in  the  field 
under  the  act,  110;  amendment  to 
Constitution  to  permit  soldiers  to 
vote  passed  by  Legislature,  112; 
adopted  by  the  people  at  the  elec- 
tion of  1864,  113 

Kentucky  104;  Legislature  of  1863 
passes  "Citizens,  expatriation,  and 
aliens"  act,  105;  bill  regulating  sol- 
diers' voting  introduced,  105;  act 
confined  to  the  presidential  election 
of  1864  passed,  106;  repealed,  107; 
election  for  members  of  Confederate 
Congress,  107;  Council  elected  by  a 
convention  of  delegates  from  coun- 
ties not  under  control  of  Federal 
troops  negotiates  an  alliance  with 
the  Confederate  States,  107 

Lanier  &  Co.,  bankers,  of  New  York, 
pay  interest  on  State  debt  of  Indiana, 
286 

Lehman  vs.  McBride,  contested  election 
case  in  Ohio,  75 

Lewis,  J.  T.,  acting  Gov.  of  Wisconsin, 
signs  soldiers'  voting  act,  63 

Lincoln,  A.,  vote  for  in  1860,  20;  letter 
of  Gov.  Gamble  on  election  in  Mis- 
souri in  1863,  44;  declines  to  instruct 
Gen.  Schofield  to  interfere  in  election, 


44;  letter  quoted  to  Rosecrans,  45; 
declines  to  include  Missouri  in  the 
emancipation  proclamation,  46;  sup- 
posedly instructs  Secretary  of  War 
Stanton  to  give  certain  information 
to  Secretary  of  State  of  New  York, 
155,  159;  approves  sentences  of 
Ferry  and  Donahue,  New  York  elec- 
tion inspectors,  164;  interview  with 
A.  J.  Parker,  Commissioner  from 
New  York,  167;  letter  to  Gov.  Brad- 
ford of  Maryland  on  the  election,  232; 
letter  to  T.  Swan  on  same,  233;  tele- 
gram to  H.  W.  Hoffman  on  the  vote 
of  Maryland  soldiers,  247;  proposes 
to  emancipate  slaves  in  Delaware, 
267;  advances  money  to  Gov.  Morton 
of  Indiana  on  account  of  State,  286; 
correspondence  with  Gov.  Morton  of 
Indiana  and  Gen.  Sherman  to  allow 
soldiers  to  go  home  to  vote,  291 ;  gives 
resume  of  the  election  returns  of  1864, 
in  annual  message  of  1864,  320;  tele- 
gram to  Grant  on  the  election  of  1864, 
321;  humorous  remark  on  result  of 
election  of  1864,  321 

Literature  on  the  Democratic  opposition 
to  soldiers'  voting  circulated  among 
soldiers  in  1864,  310 

Louisiana,  in  possession  of  Federal 
army,  does  not  pass  soldiers'  voting 
laws,  28 

Lowrie,  Chief  Justice,  declares  Penn- 
sylvania soldiers'  voting  act  constitu- 
tional, 190;  but  unconstitutional  in 
contested  case  Chase  vs.  Miller,  193- 
195;  defeated  for  re-election  in  1863, 
196 

Lyon,  N.,  saves  Missouri  to  the  Union, 
42;  removes  money  in  U.  S.  treasury 
out  of  Missouri,  430 

McClellan,  Gen.,  ballots  for,  sent  to 
New  York  troops  by  Gov.  Seymour, 
159;  letter  to  Gen.  Banks  on  arrest 
of  Maryland  legislators,  226 

Madison,  ex-President,  246 

Maine,  118;  Governor  recommends 
legislation  for  soldiers'  voting,  118, 


INDEX 


327 


120;  Legislature  of  1863  takes  no 
action,  119;  resolves  relating  to 
amendment  to  Constitution  allowing 
soldiers  to  vote,  passed  unanimously 
by  Legislature,  121;  adopted  by  large 
majority  at  election  of  1864,  121; 
soldiers'  voting  act  passed,  122;  con- 
stitutional amendment  to  allow  sol- 
diers to  vote  for  State  and  county 
officers,  126 

Marshall,  Chief  Justice,  246 

Martin,  Chief  Justice  of  Michigan,  up- 
holds constitutionality  of  soldiers' 
voting  bill,  101 

Maryland,  223;  volunteers  enlist 
against  U.  S.,  224;  House  of  dele- 
gates passes  resolution  against  occu- 
pation by  Federal  troops,  224;  troops 
in  Confederate  army,  224;  Legisla- 
ture deliberates  on  secession,  225; 
constitutional  convention  called,  234; 
convention  meets,  236;  discussion 
on  soldiers'  voting  in  the  field, 
237-43;  Constitution  amended,  244; 
controversy  as  to  who  might  vote 
on  amendment,  245 ;  adopted  by  the 
people,  246;  adoption  affected  by  the 
soldiers'  vote  in  the  field,  246;  Con- 
stitution abolishes  slavery,  313;  new 
Constitution  adopted  in  1867,  omits 
test  oath  and  soldiers'  voting  pro- 
vision, 249 

Mason,  connected  with  frauds  of  New 
York  State  election  agents  at  Balti- 
more and  Washington,  162 

Massachusetts,  293;  resolves  to  amend 
the  Constitution  to  allow  soldiers  to 
vote  passed  in  Legislature  of  1864, 
295;  resolves  not  published  as  pre- 
scribed by  Constitution  and  not  acted 
on  in  1865 ;  finally  lost  in  Legislature 
of  1866,  304 

Meade,  Gen.,  247 

Michigan,  92;  bill  to  enable  soldiers  to 
vote  in  the  field  introduced  in  Legis- 
lature, 92;  bill  is  bitterly  contested, 
93;  defeated,  95;  Gov.  Blair,  in 
message  to  Legislature  of  1864, 
again  recommends  a  soldiers'  voting 


bill,  95;  bills  introduced  and  dis- 
cussed, 97-100;  passed  and  signed 
by  Governor,  100;  act  passed  upon 
by  the  Supreme  Court  and  found  un- 
constitutional, 102;  Governor  recom- 
mends amendment  of  the  act  to 
Legislature  of  1865,102;  Constitution 
amended  to  allow  soldiers  to  vote, 
in  1866, 103;  contested  election  cases, 
101,  103 

Military  and  naval  service,  distinc- 
tion made  in  some  States  in  the  stat- 
utes providing  for  soldiers'  voting, 
314 

Minnesota,  67;  message  of  Gov.  Ram- 
say recommending  a  soldiers'  voting 
act,  67, 68;  act  (to  vote  by  proxy)  dis- 
cussed in  Legislature,  68-70;  passed 
and  approved  by  the  Governor,  70; 
soldiers'  vote  in  election  of  1864  not 
recorded 

Missouri,  41;  the  Democratic  General 
Assembly  passes  act  providing  for  a 
convention  to  consider  secession,  41; 
election  of  delegates  shows  large 
majority  for  the  Union,  42;  conven- 
tion meets  at  Jefferson  City,  42;  at 
St.  Louis,  42;  again  meets  at  Jefferson 
City,  42;  reconvenes  in  St.  Louis,  43; 
convention  passes  soldiers'  voting 
ordinance,  43;  Lincoln  declines  to 
interfere  in  the  election  of  1863,  44; 
convention  passes  ordinance  for  ob- 
taining votes  of  soldiers  on  the  Con- 
stitution, 45;  action  of  convention 
on  emancipation  of  slaves,  46 

Mobile  Bay,  mentioned,  26 

Morgan,  Confederate  Gen.;  his  raid 
into  Indiana  changes  anti-war  sen- 
timent, 286 

Morrison  vs.  Springer,  contested  election 
case  in  Iowa,  51 

Morton,  Gov.  of  Indiana,  advises  Re- 
publican minority  of  Legislature  to 
bolt,  284;  organizes  Bureau  of  Fi- 
nance to  carry  on  the  government, 
286;  message  to  Legislature  recom- 
mending amendment  to  Constitution, 
287;  asks  Lincoln  to  furlough  Indiana 


328 


INDEX 


soldiers   to   allow   them   to   vote   in 
election  of  1864,  291 

Naval  and  military  service,  distinction 
made  in  some  States  in  the  statutes 
providing  for  soldiers'  voting,  314 

Nevada,  171;  constitutional  conven- 
tion passes  ordinance  containing 
provision  for  soldiers'  voting,  171; 
soldiers'  voting  act  passed  by  Leg- 
islature, 173 

New  Hampshire,  204;  message  of  Gov. 
Gilmore  recommending  a  soldiers' 
voting  bill,  204;  act  passed  in  extra 
session  of  1864,  208;  Governor's 
veto  ruled  oat  by  Speaker  of  the 
House,  and  the  bill  becomes  law  with- 
out the  Governor's  signature,  209; 
message  of  the  Governor  repeating 
his  veto  message,  210, 21 1 ;  validity  of 
the  bill  upheld  by  a  committee  of  the 
House,  212;  and  by  the  Supreme 
Court,  214;  people  vote  in  1864  on 
expediency  of  calling  a  convention  to 
revise  the  Constitution,  220;  soldiers' 
voting  act  repealed  in  1897,  221;  sol- 
diers furloughed  to  vote  in  State 
election  of  1864,  221 

"New  Hampshire  Statesman,"  edito- 
rial on  the  turbulent  proceedings  in 
the  Legislature,  210 

New  Jersey,  269;  soldiers'  voting  law 
of  1815  repealed  in  1820,  270;  pas- 
sage of  a  new  law  refused  by  Legis- 
lature of  1864,  270;  Constitution 
amended  to  allow  soldiers  to  vote 
in  1875,  280;  soldiers'  voting  section 
(by  proxy)  included  in  election  laws 
of  1875,  280 

New  York,  132;  statute  to  allow  sol- 
diers to  vote  in  the  field  discussed 
in  State  campaign  of  1862,  132;  bill 
introduced  in  Assembly  in  1863, 
132;  message  of  Gov.  Seymour 
against  any  bill  not  based  upon  a 
constitutional  amendment,  133;  opin- 
ion of  Attorney  General  that  the  bill 
is  constitutional,  133;  voting  bill 
passed  by  the  Legislature  and  vetoed 


by  the  Governor,  136;  the  bill  passed 
over  the  veto  in  the  Senate  and  the 
veto  sustained  in  the  Assembly,  138; 
committee  on  privileges  and  elections 
censures  Governor  on  his  message, 
138,  139;  the  minority  report  of  the 
committee  a  severe  arraignment  of  the 
national  administration,  140;  amend- 
ment to  the  Constitution,  to  allow 
soldiers  to  vote  in  the  field,  recom- 
mended for  adoption  by  judiciary 
committee  of  the  Senate,  140;  par- 
tizan  report  of  minority  of  committee, 
141,  143;  resolution  amending  the 
Constitution  passes  both  houses  and 
is  referred  to  next  Legislature,  143; 
voting  by  proxy  provided  for  in  bill 
of  1863,  145,  and  1864,  153;  speech 
of  Senator  Bailey  in  favor  of  the  bill, 
146—149;  bill  to  secure  the  elective 
franchise  to  qualified  voters  in  the 
army,  introduced  in  the  Assembly  in 
1864,  149;  act  passed  by  Legislature 
and  signed  by  Governor,  151;  amend- 
ment to  Constitution  referred  to 
Legislature  of  1864,  passed,  152; 
amendment  accepted  by  the  electors, 
at  a  special  election  and  becomes 
part  of  the  Constitution,  153;  act 
providing  for  voting  by  proxy  re- 
pealed in  1865,  156;  act  providing 
for  actual  voting  in  the  field,  passed 
in  1865  and  repealed  in  1866,  156; 
act  again  passed  in  1898,  157;  Gov. 
Seymour  issues  circulars  on  voting- 
in  the  field,  158,  159;  appoints  E.  J. 
Donahue,  Jr.,  inspector.  159;  fraud* 
in  Baltimore  and  Washington  agen- 
cies, 161-170;  arrest  of  agents  and 
closing  of  agencies,  161 

"  New  York  World,"  report  of  the  trial 
of  E.  J.  Donahue  for  fraud,  162,  163; 
defence  of  New  York  State  agents, 
accused  of  conspiracy.  168-170 

Newcomb,  lawyer  from  New  York, 
aids  in  election  forgeries,  161-164 

North,  S.,  New  York  State  agent  of 
election,  arrested  in  Washington,  161; 
acquitted,  167 


INDEX 


329 


North  Carolina,  Legislature  passes  sol- 
diers' voting  act  in  May,  1861,  the 
first  legislation  North  or  South,  30; 
constitutional  convention  passes  ordi- 
nance, 31 

Oath  of  loyalty,  prescribed  by  Missouri 
convention,  43 

Ohio,  73;  soldiers'  voting  bill  intro- 
duced ha  Legislature,  73;  act  passed, 
74;  validity  of  act  questioned  hi 
election  hi  1863,  74;  act  upheld  by 
Supreme  Court,  75;  act  amended, 
76;  contested  elections  in  Legislature, 
77;  soldiers'  vote  hi  1863-4,  77,  78 

Oregon,  no  attempt  made  to  give  sol- 
diers hi  the  field  a  vote,  305 

Overland  mail  route  to  California,  128 

Parker,  A.  J.,  appointed  by  Gov.  Sey- 
mour to  defend  persons  arrested  for 
election  frauds  at  Baltimore  and 
Washington,  165;  interview  with 
Lincoln,  167 

Partizan  voting  on  soldiers'  voting  bills : 
persistently  upheld  by  Republican 
and  opposed  by  Democratic  Legisla- 
tures, 306 

Pennsylvania,  189;  act  of  1813,  per- 
mitting soldiers  to  vote  in  the  field, 
re-enacted  hi  1839,  in  force  in  1864, 
found  unconstitutional  by  Supreme 
Court,  190;  Woodward  and  Lowrie, 
Judges  of  Supreme  Court,  defeated 
hi  election  of  1863, 196;  Curtin  elected 
Governor,  196;  amendment  to  Consti- 
tution adopted  by  the  people,  200; 
soldiers' voting  bill  passed,  201;  proxy 
voting  act  passed  hi  1865, 203;  soldiers' 
vote  at  the  election  of  1864,  203 

Percentage  of  the  soldiers'  vote  hi  the 
election  of  1864,  312,  313,  317 

Perley,  Chief  Justice  of  New  Hamp- 
shire, opinion  on  validity  of  soldiers' 
voting  bill,  216 

Pierce,  Ex-President,  his  letter  to  Davis, 
of  Jan.  6,  1860,  quoted,  310 

Place  for  voting,  provision  in  Constitu- 
tions of  various  States,  8,  9 


Poland,  L.  P.,  Chief  Justice  of  Vermont, 
opinion  on  soldiers'  voting  bill,  9-11 

"Political  Dialogues,"  pamphlet  cir- 
culated among  soldiers  hi  1864, 
310 

Presidential  votes  hi  1860,  20;  in  1861, 
22;  hi  1863,  23 

"Prince  John,"  son  of  President  Van 
Buren,  introduces  a  sarcastic  amend- 
ment to  the  soldiers'  voting  bill  in  the 
Assembly  of  New  York,  135 

Proxy  voting,  See  Voting  by  proxy 

Railroads,  mileage  at  the  time  of  the 
Civil  War,  in  the  United  States,  316; 
hi  the  several  States,  317 

Ramsay,  Gov.  of  Minnesota,  recom- 
mends soldiers'  voting  act  to  Legis- 
lature, 67,  68 

Ranney,  J.,  Judge  of  Supreme  Court 
of  Ohio,  dissents  from  decision  on 
validity  of  soldiers'  voting  act,  75; 
mentioned,  16 

Read,  C.  L.,  Attorney  General  of  Mas- 
sachusetts, opinion  on  duty  of  the 
Secretary  of  State  to  publish  resolves 
to  amend  the  Constitution,  297 

Republican  party,  loss  and  gain  hi 
elections  after  I860,  20-26 

Rhode  Island,  182;  registration  tax 
discriminates  against  naturalized  citi- 
zens, 182;  Gov.  Smith's  message 
recommending  "  legislative  franchise" 
to  soldiers  referred  to  committee  on 
amendments  to  the  Constitution,  184; 
amendments  passed  by  both  sessions 
of  Legislature  of  1864, 185;  approved 
by  the  people,  186;  soldiers'  vote  in 
election  of  1864,  187 

Robinson,  L.,  comptroller  of  New  York, 
certifies  to  amendment  to  Constitu- 
tion, 153 

Robinson,  W.  F.,  Clerk  of  the  House 
of  Representatives  of  Massachusetts, 
controversy  with  Secretary  of  State 
over  non-publication  of  resolves  to 
amend  the  Constitution,  295-301 

Rosecrans,  Gen.,  letter  from  Lincoln 
on  Missouri  election,  45 


330 


INDEX 


Sailors,  not  included  in  legislation  in 
New  Hampshire  to  enable  soldiers 
to  vote  in  the  field,  220 

St.  Louis,  Missouri,  German  citizens  of, 
co-operate  to  save  U.  S.  property,  42 

Sanderson,  Chief  Justice  of  California, 
in  dissenting  opinion,  declares  sol- 
diers' voting  act  constitutional,  130 

Schenk,  Gen.,  issues  orders  to  prevent 
illegal  voting  in  Maryland,  230, 
232-3 

Schofield,  Gen.,  instructions  by  Lincoln 
on  Missouri  election,  44,  45 

Scott,  J.,  Judge  of  Supreme  Court  of 
Ohio,  opinion  on  validity  of  soldiers' 
voting  act,  75 

Seward,  Special  Judge  Advocate,  re- 
port on  New  York  conspiracy,  165 

Seymour,  H.,  Gov.  of  New  York,  mes- 
sage to  Legislature  against  a  soldiers' 
voting  bill,  133;  veto  message  on  the 
voting  bill,  136-138;  censured  by 
committee  on  privileges  and  elections 
of  Senate,  138,  139;  signs  bill  to 
enable  electors  absent  in  the  military 
service  to  vote,  151;  his  veto  of  vot- 
ing bill  endorsed  by  Indiana  legisla- 
ture, 284;  sends  instructions  on  vot- 
ing by  proxy  to  officers  of  New  York 
troops,  158;  appoints  Democratic 
agents  of  election,  159;  appoints  A.  J. 
Parker  commissioner  to  defend  per- 
sons arrested  for  election  frauds  at 
Baltimore  and  Washington,  165 

Sherman,  Gen.,  letter  from  Lincoln  in 
regard  to  furloughs  of  Indiana  sol- 
diers, 291 

Sinclair  J.  G.,  Democratic  leader  in 
New  Hampshire  House  of  Represen- 
tatives, presents  veto  of  Gov.  Gil- 
more  of  a  soldiers'  voting  bill,  which 
is  not  received  by  the  House,  209 

Slavery,  abolished  by  Missouri  conven- 
tion in  1865,  46;  Lincoln's  proposal 
to  abolish  slavery  in  Delaware  re- 
jected, 267;  amendment  of  Consti- 
tution of  Maryland,  to  abolish 
slavery,  founded  on  soldiers'  vote  in 
the  field,  313 


Smith,  Gov.  of  Rhode  Island,  message 
to  the  Legislature  recommending 
"legislative  franchise"  to  soldiers, 
183;  proclamation  of  acceptance  of 
amendment  to  Constitution,  186 

"Soldier's,  The,  right  to  vote,"  cam- 
paign tract  published  by  W.  E. 
Chandler  in  1864,  310 

Soldiers'  vote,  does  not  affect  result  of 
election  except  in  Maryland,  26; 
votes  in  different  States,  22,  23 

probable  number  of  soldiers  who 

were  able  to  vote  hi  the  field,  311; 
very  small  number  actually  voting, 
312 

provision  made  in  some  States  for 

an  extension  of  time  for  canvassing 
the  votes,  317 

Soldiers'  voting  laws  enacted:  in  South- 
ern States,  27,  28;  first  legislation 
North  or  South  in  North  Carolina,  30; 
constitutional  amendment,  31;  Ten- 
nessee, 32;  Virginia,  ordinance  of  con- 
vention, 34;  Alabama,  34;  Georgia, 
36;  South  Carolina,  37;  ordinance 
of  convention,  38;  Florida,  ordi- 
nance of  convention,  38;  act  of  assem- 
bly, 39;  Missouri,  ordinance  of 
convention,  43,  45;  Iowa,  48;  Wis- 
consin, 63;  Minnesota,  70;  Ohio, 
74;  Vermont,  85;  Michigan,  100; 
constitutional  amendment,  103;  Ken- 
tucky, limited  to  election  of  1864, 106; 
Kansas,  110;  constitutional  amend- 
ment, 113;  Maine,  122;  constitu- 
tional amendment,  121,  126;  Cali- 
fornia, 128;  New  York,  151;  constitu- 
tional amendment,  153;  Nevada,  as 
territory,  by  Constitution,  171;  as 
State,  by  act  of  Legislature,  173;  Con- 
necticut, 179;  constitutional  amend- 
ment, 179;  Rhode  Island,  constitu- 
tional amendment,  186;  Pennsylvania, 
act  of  1813  re-enacted  in  1838,  in 
force  in  1864,  190;  Constitution 
amended,  200;  bill  passed,  200;  New 
Hampshire,  209;  Maryland,  by  con- 
stitutional amendment,  244;  Illinois 
(to  vote  by  proxy),  265;  New  Jersey, 


INDEX 


331 


by  amendment  to  Constitution,  280; 
in  election  laws  of  1875  (proxy  vot- 
ing), 280 

Soldiers'  voting  legislation,  disappears 
from  the  statutes  of  States  after  the 
war,  314;  still  retained  in  Michigan, 
Kansas,  Maine,  Nevada,  Rhode  Is- 
land, and  New  York,  315 

South  Carolina,  36;  soldiers'  voting 
law  passed  by  legislature,  37;  sub- 
stitute ordinance  adopted  by  State 
Constitution  in  1862,  38 

Southern  States  pass  soldiers'  voting 
acts  at  time  of  secession,  27,  28 

Stanton,  Secretary  of  War,  refuses, 
155;  changes  tactics  after  interview 
with  Lincoln,  155;  advised  by  Judge 
Advocate  Holt  of  a  conspiracy  to 
defraud  soldiers  of  the  State  of  New 
York  of  their  votes,  164,  165 

Swann,  T.,  letter  to  Lincoln  on  election 
in  Maryland,  and  answer,  233 

Tennessee,  soldiers'  voting  law  passed 
by  Legislature,  32;  votes  on  adoption 
of  Confederate  Constitution,  32 

Texas,  does  not  pass  soldiers'  voting 
laws  28 

United  States  Adjutant  General's  office 
issues  regulations  on  voting  in  the 
field,  157 

United  States  troops  at  Baltimore,  to 
protect  Union  voters,  227 

Vallandigham,  Democratic  candidate 
for  Governor  of  Ohio,  defeated,  78 

Vermont,  80;  message  of  Governor 
recommending  a  soldiers'  voting  act, 
80;  discussed  in  Legislature,  82,  83; 
passed  and  sent  to  Supreme  Court 
for  opinion  on  its  constitutionality, 
84;  returned  without  opinion,  84; 
act  amended  and  again  submitted  to 
Supreme  Court  by  Governor,  85; 
act  found  constitutional  so  far  as 
relating  to  votes  of  soldiers  in  elec- 
tion for  members  of  Congress  and 
President  and  Vice-president,  85; 


opinion  of  Chief  Justice  Poland,  9-11; 
act  amended  in  1864,  89;  repealed  in 
1880,  89;  soldiers'  vote  in  presiden- 
tial election  of  1864  not  all  received 
in  season  to  be  counted,  89;  Supreme 
Court  on  soldiers'  voting,  9-11 

Vickers,  of  Maryland,  correspondence 
with  Gov.  Bradford  on  new  Con- 
stitution, 244-5 

Vicksburg,  mentioned,  26 

Virginia,  33;  qualified  voters  author- 
ized to  vote  at  their  encampments 
in  1861,  33,  34;  constitutional  con- 
vention of  1829  referred  to  by  Gov. 
Bradford  of  Maryland,  245 

Votes,  presidential  and  State,  1860-63, 
20-25 

Voting  by  proxy,  Minnesota,  70;  West 
Virginia,  90,  91;  New  York,  145,  153, 
156,  157;  Connecticut,  179;  Penn- 
sylvania, 202,  203;  mentioned,  18; 
Illinois,  265;  New  Jersey,  280 

Voting  by  soldiers,  Tennessee,  33;  sol- 
diers voted  in  Missouri  but  no  records 
available,  44;  Iowa,  soldiers  in  State 
election  of  1862,  50;  soldiers  voted  in 
1862  51;  in  1863,1864,1865,52;  no 
record  of  separate  vote  in  Minnesota, 
72;  Ohio  vote  in  1863-64,  77,  78; 
Vermont,  soldiers'  vote  not  all 
counted  in  1864,  no  separate  record  in 
West  Virginia,  91 ;  Michigan,  soldiers 
vote  in  the  presidential  election  of 
1864,  101;  Kentucky,  soldiers'  vote 
in  1864  in  favor  of  McClellan,  107; 
Kentucky  troops  in  Confederate 
armies  to  vote  for  members  of  Con- 
federate Congress,  107;  Kansas,  sol- 
diers' vote,  in  the  field  in  election  of 
1864,  110;  Maine,  soldiers'  vote  in 
1864,  127;  California  soldiers'  vote  in 
1864,  128,  131;  Nevada,  soldiers'  vote 
taken  in  1864,  172;  Connecticut,  sol- 
diers' vote  of  1864  not  recorded,  180; 
Rhode  Island,  soldiers'  vote  in  the 
election  of  1864,  187;  Pennsylvania, 
soldiers  vote  under  act  of  1813  in  1862, 
190;  Pennsylvania,  soldiers'  vote  in 
election  of  1861  and  1864,  203;  New 


332 


INDEX 


Hampshire,  soldiers' vote  in  1864,217; 
Maryland,  soldiers  vote  on  amend- 
ment to  Constitution,  246;  Illinois, 
soldiers  vote  on  amendment  to  Con- 
stitution, 253;  New  Hampshire,  sol- 
diers furloughed  home  to  vote  in 
State  election  of  1864,  221 

Wadsworth,  Gen.  J.  S.,  nominated  by 
Republicans  for  Governor  of  New 
York,  in  1862,  defeated,  25 

Wallace,  Major  General,  report  on  New 
York  conspiracy,  164 

Warner,  O.,  Secretary  of  State  of  Mas- 
sachusetts, controversy  with  Clerk 
of  the  House  over  non-publication  of 
resolves  to  amend  the  Constitution, 
295-301 

"Warrington,"  See  Robinson,  W.  F. 

West  Virginia,  provision  for  proxy  vot- 
ing in  Constitution,  90,  91 

Winchester,  mentioned,  26 

Wisconsin,  53;  message  of  Governor 
recommending  a  soldiers'  voting  act, 


53;  opinion  of  Attorney  General  on 
constitutionality  of  proposed  law,  55; 
action  of  Legislature,  56-63;  act 
passed,  63;  amended,  64;  soldiers' 
vote  in  state  election,  1863,  and  elec- 
tion contested,  Chandler  vs.  Maine, 
64;  opinion  of  Supreme  Court  up- 
holding act,  65;  case  cited,  51;  act 
repealed,  66;  soldiers'  vote  in  1862, 
63,  64,  66 

Woodward,  Judge,  of  Pennsylvania, 
opinion  in  contested  election  case, 
holding  soldiers'  voting  act  uncon- 
stitutional, 193-195;  defeated  in 
election  for  Governor  in  1863,  196; 
mentioned,  16,  17 

Wright,  Judge,  Supreme  Court  of  Iowa, 
upholds  soldiers'  voting  act,  51 

Yates,  Governor  of  Illinois,  message  to 
Legislature  in  1863  recommending  an 
enactment  to  allow  soldiers  to  vote, 
253;   message  renewing  recommen- 
dation in  1865,  261-264 


A     000  533  057     6 


